Homans v. Newton

• Decision Date: 21 December 1880
• Citation: 4 F. 880
• Parties: HOMANS v. NEWTON and others.
• Court: U.S. District Court — District of Massachusetts

4 F. 880

HOMANS v. NEWTON and others.

United States Circuit Court, D. Massachusetts.

December 21, 1880

Tort in the nature of trover, for the conversion of certain logs valued at about $14,000. In Nobember 1875, the plaintiff, a citizen of New Jersey, owning a large tract of land on, or near the Connecticut river, in New Hampshire, made a contract with Ross & Leavitt, of Bangor, Maine, called a conditional license, by which he granted them permission to enter upon his land and cut logs of certain kinds during the then next logging season, which were to be scaled-- that is, measured-- by a scaler appointed by the plaintiff, and the agreed stumpage was to be paid for by satisfactory paper, on a certain credit, and the plaintiff was to make advances when the logs should arrive at the boom, in Hartford. The grantees agreed to conduct the cutting and driving of the logs in a certain way, and with a certain diligence, and to pay damages in case of any default. The contract contained this clause 'And said grantor reserves and maintains full control and ownership of all logs and lumber which shall be cut under this permit, wherever and however situated, until all matters and things appertaining to or connected with this license shall be settled and adjusted, and the sum or sums due, or to become due, for stumpage or otherwise, shall be fully paid;' and, if any default should be made, he should have full power and authority to take all or any part of said lumber, and to sell and dispose of the same at public or private sale, and, after deducting reasonable expenses, commissions, and all sums which were then due, or might become due, for any cause 'herein expressed,' should pay the balance to the grantees.

Ross & Leavitt were interested as stockholders in a corporation called the Hartford Lumber Company, which owned a mill at Hartford, of which the boom is mentioned in the contract. They cut the timber as agreed, and floated it down the Connecticut river; the first lot arrived at Hartford in August, 1876. In September, 1876, an account was settled between Homans and Ross & Leavitt, showing a debt of $11,248.52 for stumpage, and $10,250 for advances. At the foot, Homans acknowledged the receipt of drafts for the sum of the account drawn by Ross & Leavitt upon, and accepted by, the Hartford Lumber Company, running from three to eight months, 'which, when paid, will be in full for the above. ' These drafts were dishonored, and have not been paid.

The Hartford Lumber Company bought all the logs which reached Hartford, and manufactured and sold a part of them, worth about $12,000, with the knowledge of the plaintiff, before the first acceptance was dishonored. November 22, 1876, the plaintiff took possession of the lumber remaining at the mill, and the company worked it up and sold it for him under a contract by which they were to have 30 per cent. They afterwards became bankrupt, and the plaintiff sold one-half the lumber remaining on hand for $4,000, and worked up the other half, for which he received $5,750. They received some other payments from Ross & Leavitt.

The defendants, living in the western part of Massachusetts, bought of Ross & Leavitt certain lots of logs that were being driven down the river in September, October, and November, 1876, and which, of course, never arrived at Hartford. They bought in good faith, without notice of the plaintiff's title, and had made payment of the full price of about $14,000, before he made a demand upon them, March 1, 1877. The plaintiff had no knowledge of the defendants' purchase until November 26, 1876. Between that day and the day of the demand, the defendants had built a mill for sawing the logs, at a cost of about $3,000, and had paid to Ross & Leavitt $621.20. Ross & Leavitt had made sales of other logs in like manner to persons not before the court.

The case was referred.

The referee found the foregoing facts, and submitted the points of law, with his rulings upon them, to the court. He found that the plaintiff retained the property in the logs; that he had not waived his rights; that he was entitled to recover in this action the balance due him from Ross & Leavitt, $3,084.51, and interest at 7 per cent, from the date of the writ, but not the full value of the logs at the time of the conversion; that no deduction was to be made for the cost of the mill, because it appeared to be still worth its cost; nor for the payment of $621.20, unless the whole value of the logs should be the measure of damages, in which case this payment, which was made after the plaintiff knew of the sale to the defendants, should be deducted.

Caleb Blodgett, for plaintiff.

Charles Allen, for defendants.

LOWELL C.J.

This grant or license or contract purports to give a conditional ownership only to the grantees, of the logs which they should cut under it. The defendants contend that the plaintiff parted with his property, and retained only a lien. This construction is not in accordance with the language of the contract. No doubt his purpose was security, but in attaining it he stipulated that neither the property nor the control of it should pass from him until payment had been made. It was not an ordinary case of sale, but an arrangement covering several undertakings on the part of the grantees, which if they carried out, the property was to be theirs.

The contract is in a form well known in Maine, where the grantees lived, and where standing timber is often sold in this way. Whether the contract was delivered in that state does not appear. It was held in Maine, some 30 years since, that even if the parties to such a contract described the vendor's title as a lien, it was not within the statute concerning chattel mortgages, and need not be recorded; and that the vendor's right was superior to that of a bona fide purchaser without notice. Sawyer v. Fisher, 32 Maine, 28. In most of the cases since that time the grantor's title is spoken of as a lien, though the contracts usually retain 'control and ownership,' as in the contract now before us. Since those courts respect a lien as fully as they do the general ownership, the name is immaterial there. I suppose that the contract was drawn up in Maine, and I doubt if it would be a wholly unwarrantable inference that the parties intended it to have the effect which the courts of Maine had so often given to similar transactions. See Emerson v. Fisk, 6 Greenl. 200; Prentiss v. Garland, 67 Maine, 345; Crosby v. Redman, 10 Rep. 306; and cases not concerning timber; Whipple v. Kilpatrick, 19 Maine, 427; Rawson v. Tuel, 47 Maine, 506; Bunker v. McKenney, 63 Maine 529; Hotchkiss v. Hunt, 49 Maine, 213.

The land was situated in New Hampshire, and as the realty was converted into personalty in that state, it might fairly be contended that the law of New Hampshire must have been in the minds of the parties. I do not know what their laws would say to a lien not recorded; but, as to a conditional sale and delivery, I understand the law of New Hampshire to agree with that of Maine. The early case of Sargent v. Gile, 8 N.H. 325, has not been overruled, that I can discover.

It has however, been held that one who buys chattels in Massachusetts of a vendee whose own title is conditional takes only what the law of Massachusetts would give him, even if at the place where the conditional sale was made the law would have upheld the title of an innocent purchaser. Hirschorn v. Canney, 98 Mass. 149. That is this case; and, if the law of this commonwealth is to govern, there is no doubt that it prefers...