Rogers v. Whitehouse

• Decision Date: 29 May 1880
• Parties: ALVAN ROGERS and others v. WILLIAM P. WHITEHOUSE, Assignee.
• Court: Maine Supreme Court

71 Me. 222

ALVAN ROGERS and others v. WILLIAM P. WHITEHOUSE, Assignee.

Supreme Judicial Court of Maine.

May 29, 1880

ON EXCEPTIONS.

Replevin for certain goods claimed to have been delivered May 4, 1877, by the plaintiffs, Rogers & Co. to Pope &amp Sibley, the assignors of the defendant, under the following agreement printed on the bill-head: " Goods sold for cash, only conditionally delivered until paid for."

The assignment to defendant was for the benefit of creditors, and dated June 8, 1877.

Writ was dated June 11, 1877. The verdict was for defendant. The plaintiffs alleged exceptions to the instructions of the presiding judge, which are sufficiently stated in the opinion.

Orville D. Baker, for the plaintiffs, cited: Whitney v Eaton, 15 Gray 225; Stone v. Perry, 60 Me. 48; Hussey v. Thornton, 4 Mass. 405; Barrett v. Pritchard, 2 Pick. 512; Hill et als. v. Freeman, 3 Cush. 257; Tyler v. Freeman, Idem, 261; Blanchard v. Child, 7 Gray 155; Coggill v. R. R. Co. 3 Gray 545; Benner v. Puffer, 114 Mass. 376; Tibbetts v. Towle, 12 Me. 341; Heath v. Randall, 4 Cush. 195; Burbank v. Crooker, 7 Gray 158.

G. C. Vose, for the defendant, submitted without argument.

BARROWS J.

The plaintiffs claim that the crate of crockery ware, the unsold remainder of which they here replevy from the assignee of their vendees was only conditionally sold by them to Pope & Sibley, the defendant's assignors--that there was an understanding between their selling agent and Pope & Sibley, that though the goods were delivered to go into Pope & Sibley's store, and be disposed of by them in the ordinary course of retail trade, the property in them was not to pass until they were paid for. The making of any such arrangement was denied and the testimony is contradictory. If it were certain that the jury found that the plaintiff had failed to prove the existence of such an arrangement, the plaintiffs would have no case.

But, as to the force and effect and legal consequences of such an arrangement, the " jury were instructed in substance among other things, that the position of the plaintiffs was that the title to the goods remained in the plaintiffs, and that Pope & Sibley had no legal title to sell any of them, and could give no legal title to any of them to any purchaser--that there was no evidence that would warrant the conclusion that the plaintiffs constituted Pope & Sibley their agents, to sell the goods for them--that it was incumbent upon the plaintiffs to show that some special contract was made between the parties, " that the title was to remain in the plaintiffs, until fully paid for, Pope & Sibley having no title, no right to sell to others." If that was established, plaintiffs would have a right to reclaim these goods at any time if payment was not made. And, on the other hand, the jury were instructed that if the real contract was that Pope & Co. were to receive the goods and have such title and right as would authorize them to sell them in the course of their business, as they had occasion to, the vendors undertaking to retain a lien upon the goods for their security, then the title would not be retained by the plaintiffs but would pass to the purchasers, " because selling by one merchant to another with an agreement and understanding between them, that the purchaser is to take such a title as would give him a legal right to sell as he pleased in the course of his business, would be entirely inconsistent with, and repugnant to an agreement that no title was to pass but was to remain in the vendors."

As touching the real character of the transaction, the presiding judge put the following questions to the jury: " Was it one by which no title was to pass to Pope & Co., by which they were to have no legal right to sell the goods? Or was it one understood between the parties to give to them a legal right to sell the goods in their business, as they had occasion from time to time, the plaintiffs undertaking to retain a lien for their security?" And the jury were finally instructed in accordance with the whole tenor of what had gone before, that if they were " satisfied that no title was passed to Pope & Co. then the plaintiffs have a right to maintain this suit. If, however, such a title was passed to them as would authorize them to sell the property as their own as they had occasion in their business, and the plaintiffs merely undertook to retain a lien upon it then they did not do the business in such a way as to give them a legal right to retake the property."

The jury must have understood that if the arrangement between the plaintiffs and Pope & Sibley was such that the latter could give a good title to their customers purchasing at retail, the title to the goods...