Hathaway v. Burr , 21 Me. 567 ( 1842 )

The opinion of the Court was drawn up by

Sheplet J.

— It was contended in argument, that there was no sufficient proof of property in the plaintiffs; but it does not appear, that any such question was made and decided by the presiding Judge. And the only questions presented by the bill of exceptions are those-arising out of the instructions, and the refusals to instruct as requested. In this Court the property of the plaintiffs must be considered as having been satisfactorily proved.

There was a substantial compliance with the first request, when the jury were instructed, “ that to maintain this action, it was necessary for the plaintiffs to prove, that defendant had sold the bark and received the money or pay for the same.” And this was correct; for if he had received payment in any manner, he must be regarded as considering it equivalent to a payment in money. Beardsley v. Root, 11 Johns. R. 464; Miller v. Miller, 7 Pick. 136.

The second requested instruction, “ that proof, that defendant said he had sold the bark, is not sufficient evidence to prove, that he had received the money or pay for the same,” was not given. To have complied with this request it would have been necessary for the Court to have decided upon the legal effect of the word sold, without regard to the circumstances or other facts appearing in the case. Proof of payment was necessary, but it might be inferred from the testimony without any positive evidence. The word sale or -sold, as used in conversation and even by legal writers, may signify only, that a bargain or contract to sell has been made, or that there has been such a contract, and delivery of the goods, or that such a contract has been made and completed by the payment of the price. The meaning will usually be clearly ascertained by the words used in connexion with it, or by the circumstances developed. Examples of the use of the word in the first sense may be found, where it is said, “ if goods are sold upon condition to be performed at the time of delivery, and the goods are delivered, but the conditions are not performed, trover will lie to recover them back.” And where it is said “ the vendor has a lien for the price of goods sold.” And of the use of it in the second sense, when “ an action for goods sold,” or “ assumpsit for goods sold” are spoken of. And of the use in the third sense, where it is said “ where goods were purchased in market overt and sold by the purchaser before the felon was convicted, it was decided, that the owner” could not maintain trover for them. And when it is said, “ if the purchaser-neglects to remove goods sold within a reasonable time, the seller may charge him with warehouse room.”

These examples will be sufficient to show, that there can be little safety in attaching a legal meaning to the word, when separated from the connexion or circumstances in which it is used. It is necessary therefore to advert to the facts disclosed in the case to decide, whether the instructions on this point were correct. These were, that the defendant before the commencement of the suit had wrongfully seised • the plaintiff’s property, and had sold it, and at the trial had offered no evidence, that it had been sold on a credit, or that it had not been delivered and payment made. In the case of Longchamp v. Kenney, Douglas, 137, the defendant had obtained possession of a ticket from his servant, with whom it had been intrusted for sale; and being called upon to account to the owner, he said, “well, if I had it, what then ? Go to the person, who received it of you, and let him pay you.” The servant paid for the ticket and brought an action for money paid and money had and received. Lord Mansfield said, “ if he sold the ticket and received the value of it, it was for the plaintiff’s use, because the ticket was his. Now as he has not produced the ticket, it is a fair presumption, that he has sold it.” This sentence affords an example of the use of the word sold in two different senses. In the first use, it does not include the payment, and in the second use it was designed to do so. It would not be necessary to carry the presumption so far, as in that case, to justify the instruction given in this case, that “ the jury would be authorized to find not only the sale, but that he had re-? ceived the rnoney or money’s worth for the same.”

In support of the third request it is contended, that if payment is to be considered as made, it is to be presumed to have been made to the owner, for whom the defendant was agent. Such a presumption can arise only, when from the nature of the business, or the usual course of transacting it, it is perceived, that payment would be expected to be made to the principal, and not to the agent. Ordinarily agents and factors for the sale pf goods are expected to receive the payments. If the defendant had authority to sejl, which must be presumed so far as he is concerned, there is nothing to indicate, that the money was to be paid to the principal. And there being no evidence, that he had paid it over to his principal, the action may be sustained against him. Buller v. Harrison, Cowp. 566.

It does not appear, that the jury were erroneously instructed respecting the measure of damages, or that the defendant was charged for a greater amount, than he was presumed to have received,

Exceptions overruled.