Gilmore v. McNeil , 46 Me. 532 ( 1859 )

The opinion of the Court was drawn up by

Appleton, J.

The plaintiff having, as sheriff, attached “ one horse, one wagon, two sleigh pungs, one harness, two hundred pounds of candy and five thousand Spanish cigars, and all of the value of four hundred dollars,” entrusted the same to the defendants, taking from them a receipt in which they promised to deliver the same to him on demand. The testimony of the defendants shows that the cigars, and most of the other articles, had been sold or exchanged before judgment was rendered in the suit on which they had been attached. There was evidence tending to show that, after the issuing of the execution, and within thirty days from the rendition of judgment, the plaintiff demanded of the defendant McNeil, in the street, the property attached, who told him to see Thaxter, the other defendant, of whom he likewise made a demand. Subsequently, on the 18th of August, and within thirty days from the rendition of judgment, the defendants made a tender of some of the articles for which they had given their receipt, and of a different sleigh pung, and cigars of equal value, but other than those attached, and offered to supply the same quantity of fresh candy, or to pay its value in cash.

In the case of a nominal receipt, the receipter is precluded from defending on the ground that no such property as is specified in his receipt was attached. Morrison v. Blodgett, 8 N. H., 255.

But, in the case before us, there was an actual attachment of specific property. The lien of the officer is upon the property attached. The receipters are the bailees of the sheriff. Their contract is to return the “ said property,” — that is, the articles attached. The contract is not to deliver goods of a certain description, which might be satisfied by the delivery of any goods of the character described. It is an agreement to deliver, on demand, the identical goods attached, and it can only be performed by so delivering them. Its performance may be excused by inevitable accident or the act of God. The receipters do not perform their contract by delivering a portion of the identical articles attached, and a portion of substituted articles of the same description and value. Scott v. Whittemore, 7 Foster, 309; Had each article been separately valued, it might, perhaps, have been different; but here the value of all the articles attached was fixed, and the plaintiff was under no obligation to receive a portion of the identical articles attached, when no excuse was offered or pretended for not delivering the remainder. Drown v. Smith, 3 N. H., 299.

It was immaterial to the rights of the defendant whether the fact that the articles tendered were other and different from those attached was known to the plaintiff or not. If a demand had been made, it was tha duty of the defendants to comply with it. This they were unable to do, for much the more valuable portion of the property attached had long before been sold. It was for the defendants, if they undertook to make a tender, to see that it was legal. But this, in consequence of their own fault, they could not do.

The demand, under the circumstances, was sufficient, though made in the street. It was held in Whittemore v. Scott, 7 Foster, 319, that the liability of a receipter upon his contract for property attached is fixed, by not delivering the property when it is demanded. A refusal to deliver is not necessary. “A demand, in whatever words,” says Shepley, J., in Hapgood v. Hill, 20 Maine, 373, “which would inform the plaintiff that the sheriff, having the execution, desired to obtain from him the property attached, would be sufficient.” But, undoubtedly, no reasonable construction can require the depositary to have the property ready to deliver wherever he may happen to be when demand is made. If demand be made at any other place than his residence, he is entitled to have a reasonable time and opportunity in which to make the delivery. Phelps v. Gilchrist, 8 Foster, 266. But the difficulty of the defendants’ position is, that, long before judgment was rendered, they had parted with a very considerable portion of the property attached, and were not in a condition to comply with or perform the terms of their contract. In Drown v. Smith, 3 N. H. 299, the attachment was of books, a portion of which had been sold, and 'the residue were tendered to the officer having the receipt, and refused by him. “Indeed,” remarks Richardson, C. J., “it was admitted that the defendant had sold a considerable portion of the books, and as he had thus voluntarily disabled himself to return a part of the books, we are of opinion that the officer ought not to be compelled to take the residue.”

The demand, therefore, under the state of facts disclosed by the defendants, was sufficient to fix their liability. The demand might be sufficient, though no time, nor place of der livery was agreed upon. If the defendants had shown that they had the property, and required a reasonable time in which to deliver it, the case would have been different. But, if the property did not exist so that it could be tendered, any agreement fixing the time and place of delivery of what had ceased to exist, would be an idle and useless ceremony. Gordon v. Wilkins, 20 Maine, 134. The defendants, if their own statements were to be believed, were unable at any time after judgment to perform their contract. The five thousand Spanish cigars were sold; each had accomplished its destiny,

“ tenuesque recessit, Consumpta in ventos.”

The candy was not forthcoming. Substitution would not answer the contract. Performance of their contract by the defendants, by their own acts, was out of their power. Their liability was fixed upon the demand made and the neglect to deliver.

The defendants have no just ground of complaint of the instructions given. Exceptions overruled.

Tenney, 0. J., and Cutting, May, Davis, and Kent, J. J., concurred.