Foye v. Southard , 54 Me. 147 ( 1866 )

WaltoN, J.

The hay sued for not having been branded as required by law, it may be that the plaintiff cannot recover upon his count for goods sold and delivered, (R. S., c. 38, § 35; Buxton v. Hamblen, 32 Maine, 448,) although a contrary doctrine has been held in New Hampshire. Brackett v. Hoyt, 9 Foster, 264; Williams v. Tappan, 3 Foster, 385.

But, if the plaintiff can prove that the defendant tortiously took his hay and sold it, or, being lawfully possessed of it, wrongfully sold it, he may waive the toi*t and recover the proceeds of the sale under his count for money had and received. 2 Greenl. on Ev., § 120. Unbranded hay is as much under the protection of the law against tortious inter-meddlers as hay that is branded.

As the evidence tended to prove that the contract of sale between the plaintiff and the defendant was rescinded, that the hay remained the plaintiff’s property, that the defendant afterwards tortiously sold it and received the pay, we think the plaintiff had a right to have the case submitted to the jury, and should not have been nonsuited.

Exceptions sustained — New trial granted.

Appleton, C. J., KeNT, Dickerson and Daneorth, JJ., concurred.