Rankin v. Goddard , 55 Me. 389 ( 1868 )

Danforth, J.

This action, has once been before this Court, and is reported in 54 Maine, 28. It was then decided that the judgment between these parties, rendered by the Supreme Court of New Brunswick, is not conclusive in this State, but that the jurisdiction of the Court might be inquired into, or the judgment impeached for fraud, and, for that purpose, the action was ordered to stand for trial. It now comes before us upon the evidence of the original plaintiff, the presiding Judge having ordered a nonsuit. It is not now pretended that the Court rendering that judgment had not jurisdiction both of the subject matter and of the parties, and a careful examination of the testimony fails to reveal anything, even tending to prove fraud. That judgment, therefore, stands unimpeached.

But it is now contended that the nonsuit was improperly ordered, because it was found that 658 tons, of the timber sued for, was actually received by the original defendants, and it was a question for the jury, whether it was delivered before or after the date of the writ in New Brunswick, and that 38 tons of it were certainly delivered after the date of that writ. It will be found, from an examination of the testimony, that the 620 tons were delivered before commencement of the suit, and the 38 tons before the trial. It further appears that, not only the 620 tons, but the 38, were delivered in fulfilment of the contract of sale evidenced by the acceptance of Dec. 19, 1855. This was, so far as appears, the only sale of timber from Goddard to Rankin & Co. Goddard himself states that this 658 tons were delivered and received " towards the 800 tons for which his acceptance was given, which I sold Rankin & Co.” Now, all this timber, for which the 'acceptance was given, has been once paid for, and no reason is suggested why he should recover for it again.

Besides, the action in New Brunswick was for damages for the non-delivery of the timber, under that contract. The 38 tons having been delivered and received in part fulfilment of that contract before the trial, it was competent for the defendant to prove it in mitigation of damages, equally so as if delivered before the suit was ■ commenced; and, if he neglected to avail himself of that, he has lost his remedy. There is no ground on which an 'implied promise to pay can rest. If, therefore, we view this action as one to recover pay for lumber delivered under the acceptance, it must fail, for payment has been made. If we consider the amendments proposed, as adopted, then, as an action to recover back the money paid under the foreign judgment, it must fail, for that judgment is unimpeached.

Nonsuit confirmed.

Kent, Walton, Dickerson and Barrows, JJ., concurred.