Huckins v. Cushing , 36 Me. 423 ( 1853 )

Hathaway, J. —

The plaintiff had one hundred and seventy-two logs in the Penobscot boom, and on the fifteenth day of May, 1851, John Winn, treasurer of the boom company, gave him an order for them, and the plaintiff thereupon gave an order for their delivery to Woodman, “who made it his business to drop away logs from the boom.”

It appears by the testimony of Winn, that the logs were delivered before he got his pay for the boomage, and that one hundred and forty-four of them were delivered prior to June 17, 1851, on which day the defendant gave the plaintiff his obligation for value received, promising to pay him the company’s charge for boomage on the logs, and Woodman’s charge for dropping them away from the boom, upon which obligation-this action was brought.

There seems to be no controversy as to the amount of .the boomage and Woodman’s charge, which are specified in a bill of particulars annexed to the writ; but the defendant resists the claim for boomage upon the ground that he paid it to the boom company, 20th September, 1851, and Mr. Winn, the treasurer, testifies that he did call and pay it to him on that day.

If the boom company had a lien on the logs for boomage, the order given to the plaintiff by Winn, the treasurer, (which was unconditional,) and the voluntary delivery of the logs had dissolved it.

The plaintiff did not request the defendant to pay the boom-age to the company, nor does the case find that he ever promised to‘pay it to them as a condition of getting the logs.

The defendant could not thus, by his unauthorized interference with the unsettled business of the plaintiff with the boom company, change their relations to each other as debtor and creditor, without the plaintiff’s consent.

The payment of the boomage to Winn, was entirely voluntary on the part of the defendant, and cannot legally avail him in defence of the plaintiff’s claim.

The plaintiff is entitled to recover the charge for boomage and Woodman’s bill, amounting in the whole to thirty-four dollars and twenty-nine cents, with interest from April 4, 1852, when a demand was made by Mr. Bartlett, as testified by him, and a default must be entered.

Shepley, C. J., and Tenney, Rice and Appleton, J. J., concurred.