Pettengill v. Merrill , 47 Me. 109 ( 1860 )

The opinion of the Court was drawn up by

Bice, J.

This is an action of replevin for a boat. The evidence shows that the defendant accepted an order in favor of the plaintiff, drawn by one Higgins, to build a boat of specified dimensions, and for a certain price. After the order was accepted, the defendant proceeded to build a boat of the dimensions specified in the order, and at different times declared he was building it on the order of the plaintiff. The boat was never delivered to the plaintiff, and the defendant refused to permit him to take it away. This action is brought to obtain possession.

There is no evidence in the case tending to show that the materials of wbicb tbe boat was constructed, or any part thereof, were furnished by the plaintiff.

By the pleadings, the plaintiff’s title is put in issue. To maintain his action, he must therefore show title. Dillingham v. Smith, 30 Maine, 370.

The mere order given for the manufacture of an article, does not affect the title. It will continue to be the property of the manufacturer until completed and tendered. Moody v. Brown, 34 Maine, 107.

When an article is manufactured to order, delivery only can pass a title. Hilliard on Sales, 28; 2 Kent’s Com., 504.

The contract here was merely executory. The rights of the parties, until delivery, rested in contract, and can be enforced only by an action on the contract. Bennett v. Platt, 9 Pick., 558; Brewer & al. v. Smith, 3 Maine, 44. The non-suit was properly ordered. Exceptions overruled,.

Tenney, 0. J., and Appleton, Cutting, May, and Kent, JJ., concurred.