Gould v. Leavitt

• Decision Date: 23 January 1899
• Citation: 43 A. 17,92 Me. 416
• Parties: GOULD et al. v. LEAVITT et al.
• Court: Maine Supreme Court

43 A. 17

92 Me. 416

GOULD et al.

v. LEAVITT et al.

Supreme Judicial Court of Maine.

Jan. 23, 1899.

(Official.)

Exceptions from Penobscot county court.

Action by Fred W. Gould and another against Benjamin F. Leavitt and another. Verdict for plaintiffs, and defendants except. Sustained.

Replevin to recover a lot of furniture and fixtures, valued at $319, and situated in the St. Elmo Saloon, on Exchange street, in the city of Bangor; the plaintiffs claiming title under a mortgage, by virtue of an assignment thereof, which said mortgage and assignment, bearing date November 2, 1896, were duly recorded.

Writ dated May 3, 1897.

Plea, the general issue, with the following brief statement:

"And, for brief statement of defense in this behalf, the said defendants say:

"First. That, at the time said goods and chattels were replevied by the plaintiffs, the title, possession, and right to the possession thereof were in the defendants, and were not in the plaintiffs.

"Second. That the mortgage under which said plaintiffs claim title to said goods and chattels was and is null and void.

"(1) Because it was given to secure the balance of the purchase money for the purchase of the St. Elmo Restaurant, stock and fixtures, situated on Exchange street, in said Bangor, a part of which said stock consisted of intoxicating liquors, that were included in said purchase, and formed a part of said balance.

"(2) Because said mortgage was given to secure the balance of the purchase money for the purchase of said restaurant, stock, and fixtures, situated as aforesaid, which said balance was made up, in whole or in part, of a debt contracted for the purchase and sale of intoxicating liquors in this state, in violation of law.

"(3) Because said mortgage was assigned to said plaintiffs to secure them for a debt contracted, in whole or in part, for intoxicating liquors sold in this state in violation of law, and that the plaintiffs received said assignment, together with the notes thereby secured, with full knowledge of the illegality of said notes and mortgage."

All of the evidence and pleadings were made a part of the exceptions.

After the evidence was fully received, the presiding justice directed the jury to return a verdict for the plaintiffs, to which ruling the defendants excepted.

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

M. Laughlin and L. C. Stearns, for plaintiffs.

Peregrine White, for defendants.

WISWELL, J. On November 2, 1896, one Stewart sold to the defendants, by a written bill of sale, the furniture and trade fixtures of a restaurant in Bangor, for the consideration of $1,100, of which $600 was paid in cash, and the balance by the defendants' notes, secured by a bill of sale—outright in form, but intended as a mortgage—of the same articles. Upon the same day the mortgagee transferred the notes and assigned the mortgage to the plaintiffs, in payment of indebtedness of about the same amount, of which indebtedness $100 was for borrowed money, and the balance for intoxicating liquors previously sold by the plaintiffs to Stewart, the mortgagee.

At the trial of the action,—replevin for the articles named in the mortgage,—the defendants made two objections to its maintenance: First, that as the transfer and assignment of the notes and mortgage to the plaintiffs were in payment of an indebtedness for intoxicating liquors, in part, it gave no title to the plaintiffs; second, that the original transaction between Stewart and the defendants included the sale of intoxicating liquors, and that the notes for a portion of the consideration were in part for intoxicating liquors, and, consequently, that both the notes and the mortgage given to secure them were void in the hands of the plaintiffs, who had knowledge of the illegality of the transaction. After the evidence upon both sides had been closed, the presiding justice ordered a verdict for the plaintiffs....