Gooch v. Holmes , 41 Me. 523 ( 1856 )

Hathaway, J.

The defendant contends that the abolishment of the municipal court of Bangor, by statute of February 28, 1856, by which the police court was established, left the case at bar unprovided for, as a case not pending in Court. It appears by section 14 of the statute establishing the police court, and sections 12 and 13 of the statute of 1855, by which the municipal court had been established, that the case was provided for, and that the plaintiff is rightly in court.

The plaintiff by her writ, as amended, claims to recover forty dollars for certain bank bills of the Ship Builders’ Bank, as sold and delivered to the defendant; and it was proved that she had forty dollars in bills of that bank, which had been deposited with Hodgman, Carr & Co., to be presented for payment, and for which they had given their receipt, and had sent the -bills to Lovejoy, their agent, at Rockland. Subsequently, the defendant being at Bangor, told Shepherd, the plaintiff’s agent, that he would give forty dollars, in current money, for the bills. Whereupon “ Shepherd got Hodgman, Carr & Co.’s order on Lovejoy and gave up their receipt, and handed this order to the defendant.” The order was not presented, and the defendant never received the bills.

The question is, whether or not this transaction was a sale and delivery of the bills to the defendant; if it was, they became his property, immediately on the receipt of the order, and were at his risk. The order cannot be presumed to have been any thing more than an authority from Hodgman, Carr & Co. to Lovejoy to deliver the bills, upon its presentment, and according to the directions therein contained. The defendant was entitled to receive the bills from Lovejoy only by virtue of the order, concerning the contents of which, the case gives us no information.

According to the facts presented, the whole matter remained in contract. "It was something to be done; nothing was completed; the bills .might have been taken on execution as the plaintiff’s property. R. S., c. 117, § 3. They might have been presented to the bank and redeemed; they might have been stolen, or lost, or destroyed, before the defendant could have presented the order, or before he received it.

The evidence in the case, entirely fails to prove a sale and delivery, by which the bills would pass to the defendant, and become his property. Moody v. Brown, 34 Maine, 107.

If the plaintiff claims to recover for breach of contract, on the part of the defendant, to buy the bills for forty dollars, in that view of the case, the instructions were erroneous concerning the measure of damages; and besides, such contract, according to the evidence, was void by the statute of frauds, for the proof was “ that the defendant agreed to give the forty dollars, current money, for the forty dollars, Ship Builder’s bank bills.” This promise was verbal, and he did not receive the bills, nor any part of them.

Exceptions sustained and new trial granted.

Tennet, C. J., and Appleton, Goodenow, and Mat, J. J., concurred.