Campbell v. Atherton

• Decision Date: 01 September 1898
• Parties: CAMPBELL v. ATHERTON.
• Court: Maine Supreme Court

42 A. 232

92 Me. 66

CAMPBELL

v. ATHERTON.

Supreme Judicial Court of Maine.

Sept. 1, 1898.

(Official.)

Agreed case from supreme judicial court, Androscoggin county.

Action by John Z. Campbell against Le Baron Atherton. Submitted on agreed statement. Judgment for plaintiff.

Argued before PETERS, C. J., and HASKELL, WISWELL, STROUT, and FOGLER, JJ.

A. R. Savage and W. H. Oakes, for plaintiff.

W. H. Newell and W. B. Skelton, for defendant.

FOGLER, J. This is an action of trespass quare clausum for entering the plaintiff's premises and taking away certain goods and chattels hereinafter referred to.

The defendant admits the entering and talcing, and justifies the taking of the goods and chattels as agent of the Atkinson Furnishing Company, claiming that the said goods and chattels, at the time of the taking thereof, were the property of that company.

The Atkinson Company in March, 1894, delivered a portion of said goods to one Kelley, and the following writing was signed by the company and said Kelley:

"53,395.

"Memorandum of an agreement made and entered into this 31st day of March, A. D. 1894, by and between the Atkinson Furnishing Company, of Lewiston, in the county of Androscoggin and state of Maine, of the first part, and Morrison O. Kelley, of Auburn, in the county of Androscoggin and state of Maine, of the second part—

"Witnesseth:

"In consideration of five dollars, paid to the party of the first part by the party of the second part, the receipt whereof is hereby acknowledged, said party of the first part hereby agrees, upon the complete payment of the amounts hereinafter specified, and at the respective times herein named, to sell to said party of the second part the following goods and chattels, to wit:

"[Here follow list and prices of goods.]

"This instrument is upon the condition that said party of the second part shall pay to said party of the first part the sum of one dollar per week until the amount of this lease shall have been paid in full.

'It is agreed that said party of the second part shall have possession of said goods and chattels until breach of the above written condition, but shall use them in a reasonable manner, and shall keep them in such manner that said party of the first part may take possession of them upon any breach of the conditions, it being agreed that time is of the essence of this contract:

"Provided, however, that after twenty dollars shall have been paid, then, in case of default of any payment, the party of the second part shall have a grace of ten days, in which he may by payment of the sum then overdue, and interest thereon, be restored to the same rights which he would have had if he had made the payments promptly.

"Made in duplicate the day and year first above written.

"Morrison O. Kelley.

"The Atkinson Furnishing Co.,

"Per L. B. Atherton.

"Witness: C. P. Atherton."

Subsequently the company delivered to Kelley the other goods so taken by the defendant and an agreement was written on the back of said original writing, and signed by the parties, to the effect that the goods then delivered should "be added to and put upon the lease of goods hired by me of them previously, and upon the same terms and conditions," and none of the goods, "whether named in the original lease or afterwards added, is to be or become my property until the full amount or price for each and all of them is paid."

Neither the original agreement, nor that subsequently made upon the back of the original, was recorded in the office of the city clerk of the city of Auburn, in which said Kelley resided.

November 23, 1894, Kelley gave the plaintiff a mortgage of all the same goods, which was duly recorded in the city clerk's office November 24, 1894.

Kelley has not paid the Atkinson Company in full the amount stipulated in said contract, and has not paid his mortgage debt to the plaintiff.

The plaintiff took possession of the goods under his mortgage, and the defendant, as the company's agent, entered the plaintiff's premises, and took away the goods, for which entry and taking this suit is brought.

The plaintiff claims title to the goods under his mortgage, contending that the contract of Kelley and the Atkinson Company is invalid, as against him, because it was not recorded.

The defendant contends that the contract of Kelley and the company, whether it be regarded as a lease or a conditional sale, was not an instrument which, by the statute in force in 1894, was required to be recorded to be valid as against any other person...