White v. Savage

• Decision Date: 11 May 1900
• Citation: 94 Me. 138,47 A. 138
• Parties: WHITE v. SAVAGE et al.
• Court: Maine Supreme Court

47 A. 138

94 Me. 138

WHITE

v. SAVAGE et al.

Supreme Judicial Court of Maine.

May 11, 1900.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

Action by Frank W. White against Llewellyn W. Savage and another. Judgment for defendants, and plaintiff excepts. Exceptions overruled.

This was an action on the case for damages for breach of a contract of bailment. When the case came on to be heard, the defendants pleaded in bar a judgment of the Bangor municipal court, rendered in an action of assumpsit brought to recover payment for the absolute sale and delivery of the goods which the plaintiff offered to show were the subject of the bailment covered by his written contract. The court ruled that the judgment referred to in the defendants' pleadings was a bar to the plaintiff's action, and that the action could not be maintained.

To this ruling the plaintiff took exceptions.

Declaration: "In a plea of the case, for that whereas hitherto, to wit, on the ninth day of February, in the year of our Lord one thousand eight hundred and ninety-eight, L. W. Savage, one of the defendants, and in behalf of said defendants, agreed in writing with the plaintiff that all goods which should be thereafter shipped from the defendants to the plaintiff should be left on sale, and further agreed to and did consign certain goods of the defendants to the plaintiff, with the express and distinct understanding that they should be placed in the store of the plaintiff only as the property of the defendants, and not of the plaintiff, and that whatever of said goods were sold by the plaintiff that he should account to the defendants therefor, and that the defendants should, at the plaintiff's request, take what was received for such sales, less a commission, and the balance of the goods unsold, to discharge any undertaking of the plaintiff in this behalf. And the plaintiff says that he has been and still is ready to account for all the goods so delivered to him by the defendants, and to return all goods unsold, as stipulated in the contract between them concerning the same; yet, notwithstanding the agreement and contract so entered into by the defendants with the plaintiff, they thereafterwards brought a suit against the plaintiff as having purchased said goods outright, and summoned him to appear to some sort of a court in Bangor with reference thereto, and have taken a large amount of goods, to wit, the amount of two hundred and fifty dollars, of the goods of the plaintiff, by force of a process issued by a court on account of said claim, and carried them away from the plaintiff's store, and the plaintiff says that in consequence of the contract of the defendants and its breach he has been greatly damaged in his reputation and in his business, in addition to the amount of goods which have been taken from him on account of the precept aforesaid, and has been put to great expense in consequence thereof; the whole damage amounting, as he says, to the sum of five hundred dollars."

Argued before EMERY, HASKELL, WISWELL, STROUT, SAVAGE, and FOGLER, JJ.

Geo. C. Wing, for plaintiff.

Geo. E. McCann, for defendants.

FOGLER, J. This is an action on the case to recover damages for an alleged breach of a contract of bailment.

The defendants recovered judgment against the plaintiff in the Bangor municipal court for $25.80 on a writ containing an account annexed for items of merchandise amounting to $25.80, and also a count, among others, for "money had and received."

In the present suit for damages the plaintiff alleges in his writ, and introduces a memorandum of contract tending to show, that the goods for which the defendants recovered this judgment in the Bangor municipal court were not in fact sold to the plaintiff by the defendants, but were consigned to him, and left in his store "on sale," with the understanding that they should remain the property of the defendants, and be accounted for when sold. He alleges that he was ready to account for all goods thus delivered to him, and to return any goods unsold; that in enforcing their judgment against him the defendants took and carried away a large quantity of his goods; "and that in consequence of the contract of the defendants and its breach he has been greatly damaged." The presiding justice ruled that the judgment of the Bangor municipal court was a bar to the plaintiff's action, and that this action could not be maintained, to which ruling the...