Southwick v. Smith , 29 Me. 228 ( 1848 )

Shepley, J.

The hides replevied were formerly the property of the plaintiff. On November 27, 1844, he delivered them to Joseph E. Were, and received his note for their agreed value, payable in eight months. He received from Were at the same time a written contract, to return to him the leather made from them to be sold by him. The proceeds were to be applied to the payment of the note, and he was to account to Were for the balance. If he paid the note at maturity, Were was to be relieved from the performance of his contract, to return the leather.

There was no provision or stipulation, that Were should in any event be relieved from the payment of his note. He could not return the hides, or the leather made from them, and be entitled to receive it. If the hides or the leather had been lost on the passage from Boston to Bucksport, or from Bucksport to Boston, the entire loss would have fallen upon him. If he failed to pay his note, the leather was to be sold as his, and the proceeds were to be accounted for to him as coming from his property. If by reason of the hides being of an inferior quality, by negligence or misfortune in the process of tanning, or by a fall of price, the leather would not sell for an amount sufficient to pay the note, the plaintiff could have collected the balance of Were. By no election could Were have avoided the risks and liabilities of an owner, and he alone would under all circumstances have been entitled to all the benefits that might accrue to the owner. The agreement to return the leather, was to be avoided by a punctual payment of the note, but the completion of the sale, did not depend upon it. Both parties were absolutely, and not upon a contingency, entitled to all the profits and subjected to all the losses of a transfer of the title to the property.

The argument for the plaintiff, that it was “ a sale, if the note was paid at maturity, if not paid at maturity the property was to revert to the original owner,” is not consistent with the plaintiff’s right secured by the contract, to sell the leather in such an event as the property of Were, and to subject him to any loss which might happen. Nor can Were, according to the cases referred to in the argument, be considered as the bailee of the plaintiff. If the hides had been delivered without any other contract to be tanned, and the leather made from them to be returned, a similar case might have been presented. There can be here no foundation for an argument, that the leather was the joint property of the plaintiff and of Were, for the whole and not a part of the loss or gain was to be borne or received by Were. If, as insisted, it was the intention of the parties, that the title to the property should not pass from the plaintiff, that could only be ascertained by a judicial tribunal for the purpose of regulating its duty from their acts and written contracts ; and if they did not so exhibit their intention, that it could be legally ascertained, the result must be the same. Exceptions overruled.