Greenleaf v. Gallagher

• Decision Date: 12 January 1900
• Citation: 45 A. 829,93 Me. 549
• Parties: GREENLEAF v. GALLAGHER.
• Court: Maine Supreme Court

45 A. 829

93 Me. 549

GREENLEAF

v. GALLAGHER.

Supreme Judicial Court of Maine.

Jan. 12, 1900.

(Official.)

Action by Levi Greenleaf against Samuel J. Gallagher. Judgment for plaintiff. Defendant moved for new trial. Motion sustained.

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

L. Greenleaf, for plaintiff.

E. W. Whitehouse, for defendant.

HASKELL, J. Assumpsit for goods sold and delivered. The writ contains two counts. The first is for a book sold and delivered under special contract. The second is account annexed for the same. The verdict was for plaintiff for $36.92, and the defendant moves for a new trial.

The special contract is in writing of the following tenor:

"$35.00. Dec. 9th, 1895. New England Magazine, Boston, Mass.: Please send me one copy of your complete work entitled 'Men of Progress,' to be issued in one large royal octavo volume, with portraits and biographical sketches of representative men of the state of Maine, for which 1 agree to pay you or order the sum of thirty-five dollars upon issue of the part containing my sketch and portrait, and delivery of the photo-engraved plate of the portrait of myself. My photograph and data for sketch I promise to furnish within thirty days, or pay the abovementioned sum upon delivery of the work. Name: S. J. Gallagher. Address: Togus, Me."

That contract is to deliver one volume of "Men of Progress," containing defendant's sketch and portrait, he to furnish sketch and portrait within 30 days and pay $35 upon issue of part containing the sketch and portrait, or the same upon delivery of the book.

The upshot of it is that defendant, if he elects to furnish sketch and portrait, agrees to pay the $35 when the "part" containing the same shall be issued, but, if he does not furnish the sketch and portrait then his payment is deferred until delivery of the book; but he is to pay anyhow.

The evidence shows that the defendant did not furnish the sketch and portrait, and that the book was left at his office, in his presence, without them. The only competent evidence of delivery is the defendant's own testimony, which is uncontradicted. He says that when the book was tendered to him at his office he at first refused to receive it, but a friend dropping in said to the agent: "Why don't you let him have it on the same conditions that he left mine,—that he would take it at the publisher's prices. I said 'No' at first. * * * Finally I consented that he should leave it on the same conditions. He says, 'I will leave it on those conditions, will I?' and I said, 'Yes sir; and nothing more was said about it really of any consequence. He left the book, and went off, and the book is on the top of my desk, and has never been opened."

This action cannot be maintained until delivery be proved. If unconditional, the plaintiff should receive the contract price, and the verdict must stand. If conditional, then the price named in the condition can only be recovered, and the verdict must be set aside as against law.

In actions for goods sold and delivered "actual delivery to and acceptance by the purchaser of the goods sued for is essential." Atwood v. Lucas, 53 Me. 508. The title to the goods may have passed, subject only to the vendor's lien for the price, yet so long as that attaches this form of action does not apply. The remedy in such case is for breach of the contract of bargain and sale, where the rule of damages in favor of the vendor is not the contract price, but the difference between it and the value of the goods retained, for he should not keep the goods, and have their price too. A vendor's lien presupposes that the title has passed, for the lien cannot attach to one's own goods. The delivery may have been sufficient to pass the title, but the possession is retained to uphold the lien. Merrill v. Parker, 24 Me. 89, is sometimes cited as against this doctrine, but on reference to the errata at the end of the volume it will be seen that the apparent dissenting opinion of Shepley, J., is really the opinion of the court, and upon which judgment was rendered, and which supports the doctrine of this opinion. Nor are we aware of any opinion of this court against it. Where the vendee may not maintain trover against the vendor for the goods, he should not have an action for the price as goods sold and delivered, but damages only for the breach of the contract of bargain and sale. Edwards v. Railroad, 54 Me. 111. In State v. Intoxicating Liquors, 73 Me. 278, Merrill v. Parker is cited to uphold the doctrine that the title to merchandise forwarded C. O D. passed when the bargain was struck; and that case is again cited in...