Paine v. McGlinchy , 56 Me. 50 ( 1868 )

Appleton, C. J.

—The defendant is sued for goods sold and delivered. The ease finds that the defendant purchased certain articles of the plaintiff and borrowed certain others, which, after the termination of the bailment, he retained. In other words, he borrowed certain articles which he did not return, as he expressly or impliedly promised to do. The presiding Justice ruled, pro forma, that the defendant having retained the goods loaned beyond the period for which they were thus loaned, might be treated as their purchaser, and gave judgment for their value. In this we think he erred. The defendant was liable upon his contract of bailment. There was no occasion to imply one which did not exist, when there was one which did. It does not appear that the defendant appropriated the articles loaned to his own use, or that he sold them or otherwise disposed of them. If he has violated the rights of the plaintiff, resulting from the contract of bailment, he is responsible upon such contract for its breach. If he has been guilty of a tort, he may be held to answer in the appropriate form of action, but there is nothing in the facts proved from which a sale of the articles loaned can be implied.

It was held in Hopkins v. Megquire, 35 Maine, 78, where goods and chattels have been tortiously converted and sold, and the money received from such sale, that the party injured might recover the proceeds. But when nothing more than a wrongful conversion is shown, the owner of the goods converted cannot recover as for their sale. Such has ever been the result of the authorities in this State. Such, too, have been the decisions in Massachusetts, in Jones v. Hoar, 5 Pick., 285; Ladd v. Rogers, 11 Allen, 209; and in Glass Co. v. Walcott, 2 Allen, 227. So, too, in New Hampshire, it is held, that when goods are wrongfully taken or detained, the former owner cannot waive the tort and maintain assumpsit for the goods. Smith v. Smith, 43 N. H., 236; Woodbury v. Woodbury, 47 N. H., 11.

Exceptions sustained.

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