Westinghouse Elec. & Mfg. Co. v. Auburn & T. R. Co.

• Decision Date: 09 February 1910
• Citation: 76 A. 897,106 Me. 349
• Parties: WESTINGHOUSE ELECTRIC & MFG. CO. v. AUBURN & T. R. CO.
• Court: Maine Supreme Court

76 A. 897

106 Me. 349

WESTINGHOUSE ELECTRIC & MFG. CO.

v. AUBURN & T. R. CO.

Supreme Judicial Court of Maine.

Feb. 9, 1910.

Exceptions from Supreme Judicial Court, Androscoggin County.

Bill by the Westinghouse Electric & Manufacturing Company against the Auburn & Turner Railroad Company. Exceptions from a ruling. Exceptions sustained.

Bill in equity brought by the plaintiff against the defendant corporation for the appointment of a receiver and adjustment of claims due and owing various creditors from the defendant corporation. The case is stated in the opinion.

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

White & Carter, for Westinghouse Electric & Mfg. Co. S. Merritt Farnum, for Gould Storage Battery Co.

Hight & Hight, for American Trust Co. Harry Manser, for Auburn & Turner R. R. Co.

SPEAR, J. This is a bill in equity brought by the plaintiff, a creditor, against the defendant, seeking the appointment of a receiver to determine and liquidate its affairs. A receiver was appointed to take charge of the defendant company, and a master selected to examine and report the condition of its accounts. Among the claims presented was one by the Gould Storage Battery Company for the conditional sale of an electrical apparatus for $0,400, for which a note of the defendant was given and indorsed by Edgar S. Hill and Frank W. Dana. The contract of sale duly executed by the battery company and the defendant company contained the following stipulation: "The title to the apparatus sold shall not pass from the battery company until payments herein (including deferred payments and any notes and renewals thereof, if any) shall have been fully made in cash. The purchaser agrees to do all acts necessary to perfect and assure such retention of title in the battery company."

"Terms of Payment: Nine (9) months from date of invoice to be secured by note of the Auburn & Turner Railroad, bearing interest at five (5) per cent., and indorsed by Mr. Frank W. Dana."

After it became due suit was brought upon the note, and on the 16th day of February, 1907, judgment was recovered in the Supreme Judicial Court for the county of Androscoggin against the defendant and the indorsers for the sum of $6,843.55.

Upon this state of facts, reported by the master, the plaintiff petitioned the court, among other things, to "declare and establish the title of your petitioner by virtue of said contract to the electrical apparatus and merchandise therein described." The sitting justice declined to grant the petition, and held that "under the terms of the contract, upon default, the claimant had an election of rights and remedies. It had a right to reclaim the...