Cole, Leavitt & Co. v. Howe

The opinion of the court was delivered by Eoyce, J. The only question in this case is, whether the plaintiffs had a lien upon the mill described in their declaration, at the time it was taken by the defendant, which was good as against an attaching creditor. The sale of the mill by the plaintiffs was conditional, and under the Act of 1870, no such sale was valid as against subsequent attaching creditors, unless the vendor of the property should take a written memorandum, signed by the [38] purchaser, witnessing such lien and the sum due thereon, which memorandum should be recorded in the town clerk’s office where the vendee resided, and the record to be made within thirty days after the property was delivered. No question is made but that such a memorandum as is required by that Act, was made and delivered to the plaintiffs. The memorandum is not dated, but the fact is found that it was made the 21st day of December, 1871, and was recorded the next day. It is claimed that it was not recorded within thirty days after the property was delivered. In describing the sum due, which the lien was to secure, the notes given for the property are described as bearing the date of October 15, 1871, and it is assumed in argument that that date must be taken as the date of the memorandum. We do not so regard it. The description given of the notes is no part of the memorandum, except as being descriptive of the sum due; and the time when the memorandum was given must be determined independently of the date of the notes described. The memorandum did not state when the property was sold or delivered, and the evidence which was offered to prove those facts was legally admissible. The evidence did not alter or vary the written contract, but was offered and received to prove facts which the parties had omitted to mention in the memorandum, and which were a part of the transaction evidenced by the memorandum. Was the record of the memorandum made within thirty days after the delivery of the property ? The case finds that the negotiations between the parties for the sale of the mill commenced prior to the 9th of September, 1871, and that the plaintiffs made proposals of a conditional sale of the mill to Fisk at an agreed price, the mill to remain the property of the plaintiffs until the pi'ice was paid, Fisk to take the mill on trial for thirty or sixty days, and then to make his election whether to keep it or not. That in pursuance of that arrangement the mill was carried to Northfield on the 9th of September, 1871, in the plaintiffs’ name, and on the 11th day of September, 1871, the said Fisk took the mill from the depot with the consent of the plaintiffs, and put it into his mill, and operated it until the 21st of December, 1871, at which time the notes for its price and the memorandum were [39] given. Eisk then made his election to keep the mill, and there was no completed sale or delivery of the property until that time. The plaintiffs were not divested of their title and right of control over the mill until Fisk had signified his election to keep it, and had performed his part of the contract. Neither did Fisk acquire any attachable interest in the mill until he made his election to keep it, and had done all that was required of him to give him the right to its possession and control. This being so, the record of the memorandum was seasonably made, and the plaintiffs were entitled to the judgment they obtained. Judgment affirmed.