Colley v. Merrill

• Decision Date: 01 May 1829
• Parties: COLLEY v. MERRILL & ALS
• Court: Maine Supreme Court

6 Me. 50

COLLEY v. MERRILL & ALS

Supreme Judicial Court of Maine, Cumberland

May, 1829

[Syllabus Material]

IN this case, which was assumpsit, in addition to the general counts, the plaintiff, in his third count, declared that on the fourth day of May, 1827, in consideration that he would give the defendants a bill of sale of a certain vessel, to be built on Presumpscot river, the defendants promised to pay him therefor at the rate of twenty one dollars per ton; and averred that on the tenth day of June following, he gave them a bill of sale of the vessel, whereby and by reason of their promise, they became liable to pay, & c. The writ bore date January 1, 1828.

At the trial, which was upon the general issue, the plaintiff produced a written contract between himself and the defendants, who were retail grocers and traders in Portland by which it appeared that on May 4th, 1827, they agreed to furnish him, from time to time, with such quantities of goods as should be necessary to build a vessel of about 160 tons and he engaged that when the keel should be laid, and the vessel raised, he would make and execute to them, a good and sufficient bill of sale of said vessel, to secure the payment for whatever goods they might furnish; " and after the sale of said vessel to the best advantage, and payment of said Merrills, " the surplus proceeds to be refunded to said Colley." On the back of the paper was this further memorandum, signed by the parties; --" It is understood by the within agreement that the said Colley is to have a credit of four months on the goods, after which interest is to be charged, until the debt is paid from the proceeds of the vessel when sold."

The plaintiff also produced the bill of sale given to him by the defendants, July 13, 1827, pursuant to the agreement; also the carpenter's certificate to the collector of the customs, dated December 5, 1827, stating the admeasurement of the vessel, which was launched in November preceding; on the back of which certificate was a conveyance of the vessel by the defendants to Eleazer Greeley & Son, ship-brokers and commission merchants, dated December 7, 1827; and another from the brokers to Reuben Mitchell, dated January 2, 1828.

The defendants proved that before and after the vessel was launched, the plaintiff, at several times, requested them to sell her as soon as convenient; that they asked his advice about the employment of some merchant for that purpose, and named the Messrs. Greeleys, to which the plaintiff assented. They also proved that at the time of the conveyance to Greeley & Son, the latter gave them a counter writing, stating that they were to sell the vessel on commissions, and pay to the defendants, or their order, the net proceeds of sales, after deducting all expenses, and all sums of money they had advanced to the defendants, or might become accountable for, on their account. These advances, made between October 30, and December 22, amounted to 900 dollars; and the broker's commissions on the sales, were $ 50 90. The defendants also proved that the sale of the vessel was not hastened nor retarded by their having had advances of money from the Greeleys; and that the sale to Mitchell was on the usual credit of four, six and nine months, in equal payments, with interest after. None of these transactions between the defendants and the brokers were known to the plaintiff.

The Chief Justice instructed the jury that in ascertaining the amount for which the defendants were chargeable as the proceeds of the vessel, they should take the sum for which she was actually sold by the brokers, if that was her fair value; or otherwise, her true value in the market; but that the charge for the brokers' commissions was not, by law, allowable. And a verdict being returned for the plaintiff, the defendants tendered a bill of exceptions to the decision of the Chief Justice, respecting the commissions, which was sealed and allowed.

The defendants also moved in arrest of judgment, because, 1st, the plaintiff had declared on a parol contract, made May 4, 1827, to pay twenty-one dollars per ton for the vessel, upon delivery of the bill of sale; but had proved a written contract of the same day, of a different tenor and effect; yet the jury had found a general verdict for the plaintiff:--2d. By the written contract, the defendants were not chargeable for the value or proceeds of the vessel, till she was sold and payment received by them therefor; but the plaintiff had commenced this action before either of those events had happened:--3d. The plaintiff's third count contained no legal cause of action against the defendants:--4th. Upon the whole record the plaintiff was not entitled by law to recover in this action.

Judgment rendered on the verdict.

Greenleaf, for the defendants, said that the whole case being now before the court by the bill of exceptions, it was competent for them to show in this court, in arrest of judgment, any thing apparent on the record, which went to the right of the plaintiff to recover. And he contended that having shown a special contract in writing, the plaintiff could not recover on the general counts, while that contract remained in force. 1 Dane's Abr. 223, 224, 226, 227, 229. Harris v. Oke, Bull. N. P. 139, 140.

And the action was prematurely brought. The conveyance to Greeley & Son was in fact merely a mortgage, with power to sell; and their advancements to the defendants were but loans, reimbursable out of the actual sales. Hence the plaintiff had no right of action till after the actual sale to Mitchell, and this was not till after this suit was commenced. Nor did the conveyance to Greeley & Son give any new right of action to the plaintiff; since a pawnee may always mortgage or sell his interest in the thing pleged, without giving the owner any greater rights than before. Moses v. Conham Owen, 123. Montagu on lien, app. 170, 171. Jarvis v. Rogers, 15 Mass. 408; and if this is not admitted in general, yet where goods are deposited by way of security for a loan of money, the lender's rights are far more extensive than such as accrue under an ordinary lien in the way of trade. Pothonier v. Dawson, 1 Holt, 383.

As to the charge of commissions, it results necessarily from the employment of a broker, to which the plaintiff assented.

Longfellow and Deblois for the plaintiff.

OPINION

WESTON, J. delivered the opinion of the Court at the ensuing term in Kennebec.

Before we proceed to other points made in this cause, it may be proper to consider the character of the bill of exceptions, which has been allowed under the seal of the Chief Justice.

Prior to the statute of Westminster the second, 13 Ed. 1 cap. 31, there was no mode of revising or correcting the direction or opinion of the presiding judge in the trial of a cause, in any matter of law, not apparent upon the record. By this statute, exceptions might be made to such opinion or direction, which it was made the duty of the judge to allow and seal, and thereupon such matter became part of the record, and as such was examinable upon writ of error. Sir Edward Coke, in his commentary upon this statute, 2 Inst. 427, says, "...