Richardson Mfg. Co. v. Brooks

• Decision Date: 06 March 1901
• Citation: 95 Me. 146,49 A. 672
• Parties: RICHARDSON MFG. CO. v. BROOKS.
• Court: Maine Supreme Court

49 A. 672

95 Me. 146

RICHARDSON MFG. CO.

v. BROOKS.

Supreme Judicial Court of Maine.

March 6, 1901.

(Official.)

Agreed case from supreme judicial court, Kennebec county.

Action by the Richardson Manufacturing Company against Albert W. Brooks. Heard on agreed case. Judgment for plaintiff.

Argued before WISWELL, C. J., and EMERY, STROUT, and FOOLER, JJ.

A. M. Spear, for plaintiff.

Thos. Leigh, for defendant.

STROUT, J. Plaintiffs consigned certain machines to Kelley & Eastman for sale under a written contract which provided that "all machines and proceeds of sale, whether in notes, cash, or account, shall specifically be and remain the property of the Richardson Manufacturing Company, held in trust in your [Kelley & Eastman's] hands until all indebtedness incurred under this arrangement shall have been paid in full." The contract contained no element of sale to Kelley & Eastman, present or prospective. No title to the merchandise passed, or ever was to pass, to them. Kelley & Eastman sold of these consigned articles to the value of $205.25 to Kelley & Hanley. Kelley was a member of both firms. Kelley & Eastman on December 22, 1897, made an assignment to the defendant for the benefit of their creditors. At that time Kelley & Hanley had not paid for the articles purchased by them. Plaintiff, by its agent, Hill, notified Kelley & Hanley of its claim, and directed them not to pay the amount to the defendant, as assignee of Kelley & Eastman, but to pay it to plaintiff, and Kelley & Hanley agreed to do so. Subsequently defendant demanded payment of Kelley & Hanley, who informed him of plaintiff's claim. March 17, 1898, Kelley & Hanley paid the amount to defendant, upon his agreement to be responsible therefor to plaintiff if the money belonged to it. In this action for money had and received, plaintiff claims to recover this amount, and also $46 collected by defendant for consigned goods of plaintiff, sold by Kelley & Eastman, and not paid to them before their assignment.

A voluntary assignee, like an assignee in insolvency, takes the title of the assignor, and only that, except in the case of prior conveyance by his assignee in fraud of creditors. In that case he so far represents creditors that he may avoid the fraudulent conveyance. In all other respects he stands in the place of his assignor, and can assert no other or greater rights than his assignor could have done. Hutchinson v. Murchie, 74 Me. 187.

The consignment agreement was not recorded as provided by chapter 32 of the Laws of 1895. As this contract contains no element of bargain or sale, it is not within...