Atlas Shoe Co. v. Bechard

• Decision Date: 10 December 1906
• Citation: 102 Me. 197,66 A. 390
• Parties: ATLAS SHOE CO. v. BECHARD.
• Court: Maine Supreme Court

66 A. 390

102 Me. 197

ATLAS SHOE CO.

v. BECHARD.

Supreme Judicial Court of Maine.

Dec. 10, 1906.

Exceptions from Supreme Judicial Court, Androscoggin County.

Action by the Atlas Shoe Company against Henri P. Bechard. Judgment of nonsuit Plaintiff excepts. Exceptions sustained, and judgment for plaintiff.

Trover for the conversion of certain goods sold and delivered by the plaintiff to the firm of Fortier & Marcotte, of Lewiston. The declaration in the plaintiff's writ is as follows:

"In a plea of the case, for that the said plaintiff, at said Lewiston, to wit, at said Auburn, on the 27th day of December, A. D. 1905, being possessed as of its own proper goods of boots and shoes, according to the bill hereto attached, marked 'A,' and of the value set opposite each item, and all of the value of twenty-two hundred and eighty-three dollars and forty-five cents ($2,283.45), as shown by said bill, thereafterwards, to wit, on the same day, lost the same, which thereafterwards, to wit, on the same day came to the possession of the defendant by finding; yet the defendant, knowing the same to be the property of the plaintiff, has not delivered the same to the plaintiff, though requested, but then and there converted the same to his own use, to the damage of the plaintiff (as it says) in the sum of four thousand dollars ($4,000)." (Bill of items marked "A" omitted in this report).

Plea, the general issue, with brief statement as follows: "That Messrs. Fortier & Marcotte, of Lewiston, were the owners of a portion of the goods mentioned in the plaintiff's writ, and not the plaintiff, and that in December, 1905, and before the suing out of the writ in this action, the said Fortier & Marcotte made a common-law assignment for the benefit of their creditors to this defendant, and that in his said capacity as such assignee he had in his lawful possession some of the goods that said Fortier & Marcotte had purchased of the Atlas Shoe Company, and which they owned at the date of said assignment to this defendant, and that subsequently to said suit herein as such assignee the defendant herein turned over to the receiver in bankruptcy proceedings instituted against the said Fortier & Marcotte a portion of the goods sued herein under the direction and order of the judge of the United States court for the district of Maine."

At the conclusion of the plaintiff's testimony, the presiding justice ordered a nonsuit. The plaintiff excepted. It was then agreed that, if the law court should decide that the nonsuit was improperly ordered, then that court should "have jury power to decide the question of liability and the amount of damages that this plaintiff is entitled to recover, and shall order judgment for that amount."

Argued before WHITEHOTJSE, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Oakes, Pulsifer & Ludden, for plaintiff. H. P. Bechard and McGillicuddy & Morey, for defendant.

POWERS, J. Trover for the conversion of certain goods sold and delivered by the plaintiff to the firm of Fortier & Marcotte. At the close of plaintiff's evidence the presiding justice directed a nonsuit. The plaintiff excepted; and it is agreed that, if the nonsuit was not properly ordered, the court shall determine the amount of damages which the plaintiff is entitled to recover and order judgment therefor.

January 20, 1904, Mr. Fortier, of the firm of Fortier & Marcotte, went to the place of business of the plaintiff, and, for the purpose of obtaining of it a line of credit for his firm, in its behalf made and delivered to the plaintiff the following written statement:

"Statement made this 20th day of January, 1904, to the Atlas Shoe Co., Boston, Mass., by E. J. Fortier, of the firm of Fortier & Marcotte, town of Lewiston, county of Androscoggin, state of Maine, which firm is composed of the following persons: E. J. Fortier and A. R. Marcotte:

Assets.

Case value of stock in store at above-named town.............................

$4,000

Case on hand in bank...................

1,000

Total assets...........................

$5,000

Liabilities.

Owe for merchandise on open account

$3,070

Owe in notes or acceptance given for merchandise.........................

Owe for borrowed money......nothing.

Chattel mortgage on stock of merchandise....................none.

Total liabilities...................

$3,070

"The above is a true and accurate statement of all our assets and liabilities, and is presented to the Atlas Shoe Co., as a basis for credit. This statement may be considered by the Atlas Shoe Co. a continuing statement of our affairs, and a new and original statement of our assets and liabilities upon each and every purchase of goods from them hereafter until we advise them in writing to the contrary. Fortier & Marcotte.

"Signed by E. J. Fortier, a member of the firm."

Thereafterwards the plaiutiff furnished goods on credit to Fortier & Marcotte from April, 1904, to March 7, 1905, inclusive, which were settled and paid for in full on March 17, 1905. From March 16 to December 13, 1905, the plaintiff continued to furnish them goods on credit to the amount of $2,283.45, and received payments on account of the same aggregating $1,130.05, leaving a balance due of $1,152.80. Applying the payments to the oldest items of indebtedness, as the parties themselves made no application of them, would still leave unpaid for all goods sold from and including May 10 to December 13, 1905. December 26, 1905, Fortier & Marcotte made a common-law assignment for the benefit of their creditors to the defendant of all their stock in trade, including the goods purchased of the plaintiff which they had not disposed of in the regular course of business, and the same was taken possession of by the defendant The next day the plaintiff's agent, Mr. Murray, called at the store of Fortier & Marcotte, where the defendant was engaged in taking an account of the stock, and demanded of him the goods sold by the plaintiff still remaining in the stock. The defendant did not deliver them, but told Murray he could not allow him to remain in the store. The writ is dated December 28. 1905, and is for all goods sold to Fortier & Marcotte by the plaintiff after the settlement in March previous. January 25, 1906, Fortier & Marcotte went into bankruptcy, and their schedules showed assets $3,132.65, debts $6,492.74. Among the latter was $200 in notes given for money borrowed of Delina Marcotte and Casimir Marcotte January 27, 1005.

It is conceded that the title to the goods passed to Portier & Marcotte, and that the representations contained in the statement of January 20, 1904, were true on that date. No notice of any change in their financial condition was ever given to the plaintiff by Fortier & Marcotte. The plaintiff claims to rescind the sales, so far as relates to all goods sold on and after May 10, 1903, on the ground that such sales were induced by the fraudulent representations of the vendees as to material facts affecting their credit. Their right to do so depends, in the first place, upon the construction to be given to the statement of January 20th. That instrument should have the construction placed upon it and the force and effect given to it which the parties themselves intended it should have at the time it was executed. There was evidence that the statement was made in order to get "a line of credit." That means credit for more than one transaction. It reaches forward in point of time, and covers future transactions between the parties until a different arrangement is made. Such is the language of the statement itself. It recites that it is presented to the plaintiff the vendor as a basis for credit, and that it may be considered by it as a continuing statement of the vendees' affairs, "and a new and original statement of our assets and liabilities upon each and every purchase of goods from them [it] hereafter until we advise them in writing to the contrary." This is something more than a representation true at the time and a mere failure to notify of a change of conditions. Such a representation may be relied upon only for a reasonable time. It is here expressly agreed that it may be considered a continuing statement and a new and original statement upon each and every purchase of goods. That can mean...