McGray v. Woodbury

• Decision Date: 27 December 1912
• Citation: 85 A. 491,110 Me. 163
• Parties: MCGRAY v. WOODBURY.
• Court: Maine Supreme Court

85 A. 491

110 Me. 163

MCGRAY

v. WOODBURY.

Supreme Judicial Court of Maine.

Dec. 27, 1912.

Exceptions from Supreme Judicial Court, Waldo County, at Law.

Action by Robert A. McGray against Orrin B. Woodbury. There was an order of nonsuit, and plaintiff brings exceptions. Overruled.

Argued before WHITEHOUSE, C. J., and SPEAR, CORNISH, BIRD, and HANSON, JJ.

Arthur Ritchie, of Belfast, for plaintiff.

Dunton & Morse, of Belfast, for defendant.

HANSON, J. This is an action of assumpsit for goods sold and delivered, and comes to this court on plaintiff's exceptions to the ruling of the presiding justice ordering a nonsuit.

The plaintiff was a grocer in East Knox, ana occupied a store belonging to the defendant under a lease for five years. The lease was still in force. The defendant held a mortgage on the goods in the store for $200. There was a second mortgage for $50. The stock inventoried $775.79, plaintiff's debts amounted to $1,161.81, and he had no other property. In January, 1912, the plaintiff entered into an agreement with Walter Woodbury, a brother of the defendant, to sell to said Woodbury the stock of goods at cost, and a bonus of $60. The plaintiff delivered the key to the store and the unexpired lease to the defendant. An account of stock was taken, and, the amount being larger than the buyer anticipated, he expressed doubt as to his ability to pay. Thereupon the defendant offered to take "the stock off his hands." The plaintiff claimed that this offer was accepted and agreed to by him. The defendant says the offer was not accepted. Walter Woodbury went to Belfast the same day, and the next morning the plaintiff and defendant rode to Belfast together. On the way they met Walter Woodbury returning. There was a conference in which the defendant asked his brother "if he had made up his mind about the goods," and he testifies: "I told him I had made up my mind to turn them over to him. He said he would take them off my hands, and Mr. McGray said he was perfectly willing." The plaintiff and his witness are not in agreement as to this; the plaintiff claiming a sale to defendant at the store the day before.

On reaching Belfast, the plaintiff and defendant ascertained for the first time that it was necessary to notify the creditors of the plaintiff, as provided in chapter 114 of the Public Laws of 1905. Advice of counsel was had and proper steps taken to make a valid sale. A list of creditors was then and there made and sworn to by the plaintiff and furnished to the defendant, and there was full understanding and agreement between the parties as to their further duty, one to the other. The largest creditor of the plaintiff was represented at the meeting in Belfast. In reference to this branch of the case the plaintiff was asked: "Q. Was it understood, when that (the list of creditors) was made, that Mr. Woodbury would notify or send the list and notices to the creditors? A. That was the way I understood it. Q. You understood that he was not to pay for the goods until that had been done according to the statute, didn't you? A. Why, yes; yes. Q. He refused to pay anything that morning? A. Yes."

Whatever occurred at the meeting on the way to Belfast, or the day before at the store, was modified by mutual consent on reaching Belfast; both parties seeing the necessity of beginning over, and proceeding according to law. They...