Merry v. Lynch

• Decision Date: 07 March 1878
• Citation: 68 Me. 94
• Parties: ADELINE P. MERRY, administratrix of Corydon T. Patterson, v. JOHN LYNCH.
• Court: Maine Supreme Court

68 Me. 94

ADELINE P. MERRY, administratrix of Corydon T. Patterson, v. JOHN LYNCH.

Supreme Judicial Court of Maine.

March 7, 1878

ON REPORT.

ASSUMPSIT for money had and received.

J Baker, for the plaintiff.

A. P Gould & J. E. Moore, for the defendant.

LIBBEY J.

From a careful examination of the report of the evidence it appears that in 1874 the plaintiff's intestate, Corydon T. Patterson, was possessed of a farm and brick yard, which he leased for one year to Edward F. Brewer, with covenants that the lessee should manufacture a kiln of bricks in the yard, each party to pay certain portions of the expenses, as stipulated, and when the bricks were burnt, each party should have one-half of them.

After the bricks were burnt, three suits were brought against Brewer by laborers, and the bricks were attached to enforce the lien claimed by them for their labor in manufacturing them.

Patterson and the defendant receipted to the officer making the attachments, for the bricks, and thereupon Brewer conveyed to Patterson his half of them in consideration that he would pay the bills against them contracted by Brewer, sell them, appropriate the proceeds to the payment of the bills sued, and account to him for the balance, if anything.

Soon after this, Patterson, with the consent of Brewer, made an agreement with the defendant by which he was to have all of the bricks, perform Patterson's agreement with Brewer as to his half, pay certain bills against Patterson for wood and burning the bricks, sell them and account to him for the net proceeds of the sales, and to appropriate the proceeds to the payment of the money advanced to pay said bills, and to the payment of three notes which he held against Patterson, and account to him for the balance, if any. The bricks were delivered to the defendant under this agreement and possession thereof retained by him. He paid the bills against Brewer and Patterson as agreed, and shipped and sold a part of the bricks in December, 1874. The balance were shipped in April, 1875. The net proceeds of the sale of Patterson's half of the bricks shipped in April, 1875, was $351.36. Patterson died April 20, 1875.

It is claimed by the plaintiff that the bricks shipped in April were not shipped till after Patterson's death; and by the defendant that they were shipped before his death. The view we take of the case renders it immaterial to determine how the fact is upon this point.

It is claimed by the counsel for the plaintiff that, under the agreement between the parties, the title to the bricks did not pass to the defendant; that at best for the defendant he was only constituted the agent of Patterson to sell the bricks for him and account for the proceeds; and that Patterson's death before the shipment and sale of the bricks in April,...