Homans v. Newton

Lowell, C. J. This grant or license or contract purports to give a conditional ownership only to the grantees, of the logs which they should cut under it. The defendants contend that the plaintiff parted with his property, and retained only a lien. This construction is not in accordance with the language of the contract. No doubt his purpose was security, but in attaining it he stipulated that neither the property nor the control of it should pass from him until payment had been made. It was not an ordinary case of sale, but an arrangement covering several undertakings on the part of the grantees, which if they carried out, the property was to be theirs. The contract is in a form well known in Maine, where the grantees lived, and where standing timber is often sold in this way. Whether the contract was delivered in that state does not appear. It was held in Maine, some 30 years since, that even if the parties to such a contract described the vendor’s title as a lien, it was not within the statute concerning chattel mortgages, and need not be recorded; and that the vendor’s right was superior to that of a bona ficle purchaser without notice. Sawyer v. Fisher, 32 Maine, 28. In most of the cases since that time the grantor’s title is spoken of as a lien, though the contracts usually retain “control and ownership,” as in the contract now before us. Since those courts respect a lien as fully as they do the general ownership, the name is immaterial there. I suppose that the contract was drawn up in Maine, and I doubt if it would be a wholly unwarrantable inference that the parties intended it to have the effect which the courts of Maine had so often given to similar transactions. See Emerson v. Fisk, 6 Greenl. 200; Prentiss v. Garland, 67 Maine, 345; Crosby v. Redman, 10 Rep. 306; and cases not concerning timber; Whipple v. Kilpatrick, 19 Maine, 427; Rawson v. Tuel, 47 Maine, 506; Bunker v. McKenney, 63 Maine, 529; Hotchkiss v. Hunt, 49 Maine, 213. The land was situated in New Hampshire, and as the realty was converted into personalty in that state, it might fairly be contended that the law of Now Hampshire must [885] have been in tlie minds of the parties. I do not know what their laws would say to a lien not recorded; but, as to a conditional sale and delivery, I understand the law of New Hampshire to agree with that of Maine. The early case of Sargent v. Gile, 8 N. H. 325, has not been overruled, that I can discover. It has, however, been held that one who buys chattels in Massachusetts of a vendee whose own title is conditional takes only what the law of Massachusetts would give him, even if at the place where the conditional sale was made the law would have uphold the title of an innocent purchaser. Hirschorn v. Canney, 98 Mass. 149. That is this case; and, if the law of this commonwealth is to govern, there is no doubt that it prefers the title of the conditional vendor. The decisions which have followed Coggill v. Hartford & N. H. R. Co. 3 Gray, 545, are so numerous that I have room to cite but a part of them; some of them were more doubtful in respect to the condition, or its waiver, and others were harder for the purchaser than this case. See Sargent v. Metcalf, 5 Gray, 306; Burbank v. Crooker, 7 Gray, 158; Deshon v. Bigelow, 8 Gray, 159; Zuchtman v. Roberts, 109 Mass. 53; Benner v. Puffer, 114 Mass. 376; Salomon v. Hathaway, 126 Mass. 482; Kenney v. Ingalls, Id. 488. I have examined the authorities cited for the defendants, and they seem to establish that in a few of the states a conditional sale is put on the footing of an unrecorded mortgage, which, by statute, and not always or usually by the common law, would bo invalid against a purchaser. The case cited to that effect from the court of appeals of New York has been overruled by Ballard v. Burgett, 40 N. Y. 314, and Austin v. Dye, 46 N. Y. 500; but I assume that some of the cases express the present state of the law in the states whose decisions they are. No doubt there is hardship when one is enabled by possession of a chattel to commit a fraud; but this is true of all bailments. If I lend a horse to my neighbor, he may be able to deceive an innocent purchaser. The cases are precisely parallel, for one who has agreed for a conditional purchase [886] has no more apparent possession than a borrower. The common law, as maintained in a great majority of the states, undoubtedly is that in the absence of actual fraud, or laches, on the part of the true owner, the possessor of a chattel, in a case of this kind, can only dispose of his own title. To this only two exceptions are generally admitted — First, that a vendor, who has only the right to elect to avoid a sale, must make his election before the title of an innocent purchaser has accrued; second, that if the sale is for cash, the vendor may, by making delivery, be held to waive the condition. This last is a question of fact; but where evidence is very strong, a question of fact becomes one of law, by the courts calling it a conclusive presumption. Many points of law are facts so clearly proved that judges will not permit juries to find the contrary. The legal grounds of these exceptions are obvious. A passage from Kent, 2 Com. 498, which is often cited in favor of bona fide purchasers, will be found, on examination, as I conceive, to refer to a rule in equity. ' The two cases which he cites on that side are from chancery, and he would not have laid down a general rule of title without a much more careful examination of the authorities. See Copland v. Bosquet, 4 Wash. C. C. 588, where Mr. Justice Washington deals with the first case cited by Kent, and denies that there is such a rule at common lav/; and the opinion of Loft, J., in Ballard v. Burgett, 40 N. Y. 314, where the commentary and the cases are fully considered. See, too, on the general question, besides the authorities already referred to, Holmes’ note to 2 Kent Com. 498, (12th Ed.;) Perkins’ note (d) to Benjamin on Sales, § 320, (2d Am. Ed.;) Clark v. Wells, 45 Vt. 4; Duncan v. Stone, Id. 118; Dunbar v. Rawles, 28 Ind. 225; Griffin v. Push, 44 Mo. 412; Ridgeway v. Kennedy, 52 Mo. 24; Bailey v. Harris, 8 Iowa, 331; Robinson v. Chapline, 9 Iowa, 91; Baker v. Hall, 15 Iowa, 277; Sumner v. McFarlan, 15 Kan. 600. I have omitted many decisions in which the contract contained words to express a bailment, such as lending, or letting to hire with a right to buy, because some courts hold [887] that such words aro necessary to the preservation of the vendor’s property. Compare Rose v. Story, 1 Pa. St. 190; Becker v. Smith, 59 Pa. St. 469; Enlow v. Kleim, 79 Pa. St. 488. I do not regard the distinction a sound one, because the transaction itself creates a bailment, and there is no good reason why one set of words rather than another should be used to express the idea that the general property remains in the original owner, provided the idea is adequately expressed. I conclude, therefore, that Eoss & Leavitt did not convey an indefeasible title to the defendants. The referee finds, as a fact, that the acceptances were not taken in payment of the account, and the memorandum, on the account confirms this finding. They can, then, have no effect as a waiver of the plaintiff’s rights. The defendants stand no better than the original parties in this respect, because the plaintiff had no knowledge when ho took the acceptance that the defendants had any interest in the matter. If was the implication of the contract that all the logs were to be taken to Hartford for manufacture, and the plaintiff was not bound to inquire whether this had been done, and was not likely to suspect that it had not been. The other defences of waiver and estopped are ruled by the referee against the defendants, on the grounds of fact, that the plaintiff acted throughout with prudence and diligence, and realized as much as ho could fairly realize, after a default had been made, and was ignorant of the defendants’ equities. He is not accountable for sales made by Eoss & Lea-vitt, or the Hartford Lumber Company before they had made default, and before lie had any knowledge of the defendants’ position. If a demand was necessary, it was made, and the referee finds that no loss occurred to the defendants by any delay of notice, unless the court adopts a different measure of damages from that which he finds to be the true one. The plaintiff argues that he is entitled to recover the whole value of the logs sold to the defendants. There are cases in which it is held that no credit can be given for part payment in such cases; that as replevin may be maintained for the [888] chattels, so their whole value may be recovered in trover. Angier v. Taunton Manuf’g Co. 1 Gray, 621; Brown v. Haynes, 52 Maine, 578; Duncan v. Stone, 45 Vt. 118. The rule is harsh, and there would, perhaps, be a remedy in equity; but, unfortunately, the value of a cow, or of a little furniture, is too slight to bear the expense of such a proceeding. This ease differs from those, in the vital particular that the parties here have agreed on the measure of damages. If the plaintiff took the goods by replevin, he must account for their value after paying his debt; and if he recovered the whole in trover, he must immediately pay the surplus to the defendants. I have little doubt that the contract was thus written, or that the form which was followed was adopted for the very purpose of avoiding the injustice which might follow from an enforcement of the strict rule of the common law. And it is'effectual for that purpose. I find no error in any of the rulings of the referee. I agree with him that the interest on the plaintiff’s debt should be reckoned at the stipulated rate of 7 per cent. Judgment for the plaintiff.