Carey v. Penney

• Decision Date: 22 October 1930
• Citation: 151 A. 667
• Parties: CAREY v. PENNEY.
• Court: Maine Supreme Court

151 A. 667

CAREY

v. PENNEY.

Supreme Judicial Court of Maine.

Oct. 22, 1930.

Action by John F. Carey against Charles R. Penney. Verdict for plaintiff. On motion and exception. Motion sustained.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

Buzzell & Thornton, of Belfast, for plaintiff.

McLean, Fogg & Southard, of Augusta, for defendant.

PATTANGALL, C. J.

Motion and exceptions. Action for money had and received. Verdict for plaintiff.

In November, 1922, defendant, through an agent, sold plaintiff a farm, together with certain personal property thereon, for, the sum of $1,200, plaintiff paying $650 cash and agreeing to give notes secured by mortgage on the farm for the balance of the purchase price. As soon as the terms of the sale were agreed to, and plaintiff had made the cash payment, he took possession of the property.

Defendant executed a deed of the farm, and plaintiff executed a note and mortgage. All of the documents were left with defendant's agent, awaiting the signature of plaintiff's wife to the mortgage. It was arranged that she should come to the agent's office later in the day for that purpose, and she did so, but did not find him there. Later she refused to sign, claiming that certain of the personal property included in the trade had been removed from the farm by defendant, and as a consequence the deed was never delivered to plaintiff, and nearly four years later his note was returned to him by defendant.

Plaintiff testified that at that time, in view of the failure of defendant to deliver the personal property which he claimed belonged to him, he "refused to carry out the trade." But he had already gone into possession of the farm and of so much of the personal property as remained thereon. He made no suggestion of placing defendant in statu quo, nor did he demand a return of the $650 he had paid. Instead, he remained on the farm until June, 1926, exercising all of the prerogatives of ownership, even to the extent of making considerable alterations in the house. He treated the personal property during that entire period as his own.

He claims that during the summer of 1923 he learned that he had been deceived as to the amount of hay which the farm produced, and that he communicated the fact to defendant and to defendant's agent, but he took no action looking toward a revocation of the trade at that time.

Continuing in possession of the property, he neither revoked the contract nor attempted to carry it out. He paid nothing more to defendant. Neither did he pay taxes on the property, nor insurance, nor interest on the note, nor rental.

On April 30, 1924, defendant brought a writ of entry against plaintiff, demanding possession of the premises. This writ was entered in the Supreme Judicial Court in September, 1924, and in the following year the action was discontinued, plaintiff becoming nonsuit. On March 12, 1926, defendant brought a second writ of entry which was entered at the April term of that year and defaulted by agreement. Writ of possession followed, and plaintiff was ejected on June 19th following.

On April 2, 1926, prior to the opening of the April term, the writ in the instant case was brought. This action, as has been stated, was for money had and received. The following specification of claim was filed:

"Specification:)—Under this count the Plaintiff will prove that the above sum of six hundred and fifty dollars was paid by the Plaintiff, John F. Carey, to Charles R. Penney, the Defendant, or to his agent, Roy C. Fish, as the first payment under a contract for the purchase of the farm and other property by the said John F. Carey, which contract the said Charles R. Penney has not carried out or completed."

The case was tried to a jury at the September term, 1927, a verdict being rendered for plaintiff. During the trial, plaintiff offered evidence to prove false statements and pretenses and misrepresentations made to him by one Roy C. Fish, an agent of the Strout Farm Company, which company had been employed by Mr. Penney to negotiate the contract for sale of the farm in question....