Emerson Co. v. Proctor

• Citation: 54 A. 849,97 Me. 360
• Parties: EMERSON CO. v. PROCTOR.
• Decision Date: 16 March 1903
• Court: Supreme Judicial Court of Maine (US)

54 A. 849

97 Me. 360

EMERSON CO.

v. PROCTOR.

Supreme Judicial Court of Maine.

March 16, 1903.

(Official.)

Report from Supreme Judicial Court, York County.

Action by the Emerson Company against Thomas D. Proctor. Case reported. Judgment for defendant.

Argued before WISWELL, C. J., and; STROUT, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

Edwin Stone and Enoch Foster, for plaintiff.

H. Fairfield and L. R. Moore, for defendant.

POWERS, J. This is an action of trover. The first count is for a six-track patent automatic compressing dry kiln, 31 feet wide and 84 feet long. The dry kiln is a building erected by the Biddeford & Natick Manufacturing Company, a corporation located at Biddeford, in this state. The plaintiff corporation furnished, and claims to still own, the most of the apparatus and iron work used in its construction, but this would not give title to the building itself. In order to, recover under the first count, the plaintiff must show title to the dry kiln, and this it has not done.

This brings us to the second count, which is for the apparatus and ironwork sold and delivered by the plaintiff to the Biddeford & Natick Manufacturing Company, and used by it in the construction of this dry kiln. Prior to October 21, 1899, there had been some negotiations between said company and the plaintiff, but the parties had been unable to agree upon the terms of a sale or contract. On that date the plaintiff made and signed a written proposal at its office in Baltimore, Md., and sent it to the Biddeford & Natick Manufacturing Company in Biddeford, by Mr. Bruce, one of the directors of the last-named corporation. By this written proposal the plaintiff corporation offered to furnish specifications and schedule of material required for a dry kiln 31 by 84 feet, and also the apparatus and ironwork, for the price of 81,850. The erection of the building was to be under the superintendence of a mechanic to be furnished by the plaintiff, and paid by the Biddeford & Natick Manufacturing Company. On the day of the shipment the plaintiff was to notify the Biddeford Company by telegraph, and the latter was to send at once to the former its note on four months, to the order of the plaintiff, for $1,850, which note the proposal recited that the First National Bank of Biddeford had agreed to discount. Upon the receipt of the proceeds the plaintiff corporation agreed to immediately assign and forward bill of lading to the Biddeford Company; the title in the shipment, until the receipt of said proceeds, to remain in the plaintiff. It was further agreed that the title to the property was to remain in the plaintiff until all payments were fully paid and discharged. The proposal contained a guaranty as to the working of the kiln after construction. The Biddeford Company was to give to the superintendent, before leaving, a written acceptance or rejection of the kiln. If rejected, it was to have the right to reload and return the material at the cost of the plaintiff, and a failure to do so was to be regarded as an acceptance.

Such, in substance, was the written proposal made and signed by the plaintiff in Baltimore, and sent to the Biddeford & Natick Manufacturing Company at Biddeford. After its receipt the latter telegraphed the former: "if we sign contract, do you agree to renew notes for four months, making eight in all? Wire reply." The plaintiff answered: "Yes, if bank will discount renewal." Thereupon the Biddeford & Natick Manufacturing Company, at Biddeford, signed the following acceptance at the bottom of the proposal: "Biddeford, Me., Oct. 26, 1899. The Emerson Company, Baltimore, Md.: We hereby accept the above proposition." It then returned it to the plaintiff, and also sent the plaintiff its note for $1,850, payable at the First National Bank, Biddeford, Me. This note has never been paid, and the plaintiff claims title to the property under the terms of the written agreement.

The agreement has not been recorded, and the defendant, who claims title by purchase from the assignee of the Biddeford & Natick Manufacturing Company, invokes the provisions of Rev. St. c.111, § 5, as amended by Laws 1895, c. 32, which declares that "no agreement that personal property bargained and delivered to another, shall remain the property of the seller till paid for, is valid unless the same is in writing and signed by the person to be bound thereby. And when so made and signed * * * it shall not be valid except as between the parties thereto, unless it is recorded in the office of the clerk of the town in which the purchaser resides at the time of the purchase." This section requires all such agreements in which a corporation is the purchaser to be in writing and signed. We think it was also intended that they should be recorded; that a corporation, within the meaning of that section, "resides" in that town in which it has its established place of business. Prior to 1895 this section required such agreements to be "recorded like mortgages of personal property," and mortgages of personal property made by a corporation must be recorded in the town where it has its established place of business. Rev. St. c. 91, § 1. The change of phraseology made in 1895 was not intended to work a change of the law in this respect. It was intended to broaden, rather than limit, the rule that such agreements, in order to be valid, must be in writing, signed, and recorded. No reason can be assigned why it should not apply to such agreements when made by a corporation as...