Johnson v. Eveleth

• Decision Date: 07 December 1899
• Citation: 93 Me. 306,45 A. 35
• Parties: JOHNSON v. EVELETH.
• Court: Maine Supreme Court

45 A. 35

93 Me. 306

JOHNSON

v. EVELETH.

Supreme Judicial Court of Maine.

Dec. 7, 1899.

(Official.)

Report from supreme judicial court, Kennebec county.

Action by Charles P. Johnson, assignee of Edward Ware, against John H. Eveleth. Case reported, and, on appeal, nonsuited.

This was an action of trover, brought by the plaintiff, as assignee in insolvency of Edward Ware, to recover the value of 7,936 spruce logs of the value of $7,812.54. The action came on for trial at the October term 1898, of the supreme judicial court in Kennebec county, but, after the testimony had been partly taken out, it was, by agreement of counsel, reported to the law court to render such judgment, upon so much of the evidence as is admissible, as the rights of the parties require.

The defendant pleaded the general Issue with the following brief statement of special matters of defense, alleging that "the defendant will show that any such alleged purchase was procured by fraud, and without consideration; and that said pretended purchase was on credit; and that at the time same was made said Ware was insolvent, and knew he was insolvent; and that he did not, at the time of the alleged purchase, intend ever to pay for said logs; and that said defendant, on learning of such insolvency and fraudulent intent, promptly rescinded said pretended sale; and that said logs were sold by the defendant to said Ware on credit, and were never delivered by said defendant to said Ware, or to the plaintiff, but were delivered by the defendant to the Kennebec Log-Driving Co., a common carrier from Moosehead Lake to the ocean, to be carried from the dam at the outlet of Moosehead Lake to said Ware's boom, in Winslow; and that, as soon as the defendant learned of the failure of said Ware, to wit, on May 25, 1898, he resumed possession of said logs at a place called 'Shawmut' In the town of Fairfield, while they were in transit to said Ware, and in the possession of said common carrier, and before they got into the actual possession of said Ware."

Argued before EMERY, HASKELL, WISWELL, STROUT, SAVAGE, and FOGLER, JJ.

Chas. F. Johnson, for plaintiff.

W. T. Haines and H. D. Eaton, for defendant.

SAVAGE, J. This case comes up on report. We think the evidence shows the following facts: On March 22, 1898, one Edward Ware entered into a contract of bargain and sale with the defendant for the purchase of about 1,000,000 feet of logs, numbering 7,663 sticks, then lying in Spencer Pond, above Moosehead Lake. It was agreed that the logs should be delivered by the defendant "over the dam" at the east outlet of Moosehead Lake into Kennebec waters. From that point they were to be driven down the Kennebec river by the Kennebec Log-Driving Company. Ware had booms in Fairfield and Winslow, and a mill at the latter place. The logs were bought by Ware for the purpose of being manufactured into lumber at his mill in Winslow. On May 25, 1898, Ware assigned to the plaintiff for the benefit of his creditors, under the provisions of the insolvent law (Laws 1897, c. 325, § 16). He was, and for a long time had been, hopelessly insolvent. In the meantime the defendant had caused a large portion of the logs to be delivered "over the dam" at the east outlet, and they were being driven down the Kennebec river towards Ware's booms and mill. Some scattering logs had already reached Ware's mill, and had been sawed. They had drifted down the river, without the necessity of being driven. But the drive proper did not reach Fairfield or Winslow until the last of August 1898. When the drive reached Shawmut, above the Fairfield boom, August 22d, the defendant took from the river all the logs he had sold to Ware which then remained in the drive, numbering 6,815 sticks, and surveying 808,032 feet And it is for this taking and alleged conversion that the plaintiff has brought this action of trover. Ware agreed to give four notes for the price of the logs, maturing at different times. At the time of his assignment he had given one note to the defendant, which was subsequently protested for nonpayment and then tendered back by the defendant to the plaintiff. The other three notes he never gave.

The defendant asserts several grounds of defense, only one of which do we think it necessary to consider. He says he took the logs from the river in the exercise of the right of stoppage in transitu. He claims that the log-driving company was a carrier. He says he sold the logs on credit, and that while they were in transit to their ultimate destination in Winslow, and were in the possession of the log-driving company as a carrier, the purchaser became insolvent. And this fact, he says, gave him the right to resume the possession of the logs at any time before they came into the actual possession of Ware, or came to their destination in Winslow.

In reply the plaintiff says: (1) That the log-driving company was not a carrier, or middleman, in such a sense as gave it possession or control of the logs; that the river was the real carrier; that the company provided no means of conveyance or motive power, but simply facilitated the floating of logs down the river by breaking jams and otherwise, and hence that, after the logs passed out of the possession of the defendant by being turned "over the dam," they must have been, constructively at least, in the possession of Ware, while floating upon the river; and, furthermore, that in any event the log-driving company was really only an association of log owners, of whom Ware was one, and that a delivery of the logs to the company was, in effect, a delivery into the possession of Ware. (2) That by the terms of the contract between Ware and the defendant the "destination" of the logs was "over the dam" at the east outlet, and that when they were so delivered the "transitus" was at an end. And (3) that the facts that some of the logs had floated down the river to Ware's mill, and had been received and sawed by him, constituted a constructive delivery of the whole mass into his possession.

These contentions make it necessary for us to consider the character and duties and method of operation of the Kennebec Log-Driving Company. Its charter and by-laws are made a part of the case. By the charter (Laws 1885, c. 402), certain persons named, their associates and successors, are constituted "a body politic and corporate," and may sue and be sued, etc. They have power to adopt all necessary regulations and bylaws. "They shall drive to such place of destination on the Kennebec river as may be designated by the owners, or by the directors of said company, and may secure and form Into rafts, under rigging, all logs and other timber belonging to said company, or any member thereof, that may be in the East Branch and Kennebec river, for that purpose, below the outlet of Moosehead Lake at the dam." "They may remove obstructions, and erect booms, piers and dams." Section 1. "Any person, persons or corporations, or their agents, owning logs or other timber to be driven on said rivers at the date of the annual meeting in each year, shall be members of the Kennebec Log-Driving Company, and shall so continue for two years at least from that date." Section 3. Members owning logs to be driven are required to file a correct statement of all such logs or timber, giving the number of feet, with the marks, and the place from which logs are to be driven, and their destination. The expenses of driving, and for damages and losses, are to be assessed upon the owners of the logs driven, and the payment of assessments is secured by a lien upon the logs. Section 4. The company may collect logs or timber remaining in booms or in any place exposed to loss, and deposit the same in suitable places, and properly secure it from loss, and to pay for this service an assessment may be made. Sections 10, 11, 12, 13. "The private property of each member of said company shall be holden to pay all debts contracted by the company after he became a member thereof, and before his withdrawal from the same, in default of company property whereon execution may be satisfied." Section 16.

By these extracts from its charter it appears that the Kennebec Log-Driving Company is a corporation. It is more than a mere association of log owners. To be sure, all owners of logs to be driven are, by force of the statute, members, but all combined are only one corporate body. The corporation and its members are different persons. Hence it follows that a possession by the corporation is not a possession by a member, unless the corporation has been made an agent for that purpose. In this case the corporation does not appear to have been the agent of Ware for any purpose. It was simply performing its corporate duty in receiving and driving the logs. It did that under its charter, and not as agent. In this respect this case is...