Mosher v. Smith , 1877 Me. LEXIS 27 ( 1877 )

Dickerson, J.

There was evidence in this case tending to show a*trade for the oxen in controversy between one Joseph Collins, the owner, and W. Tarbox, and, also, a subsequent sale of the oxen to the plaintiff. In both cases the oxen were left in the possession of the vendor until they were taken away by the defendant, at the request and as the servant of Tarbox. The question before the jury was, whether the trade with Tarbox passed the title in the oxen to him so as to entitle him to hold them against the plaintiff as a purchaser.

There was testimony tending to show, and the plaintiff claimed, that the oxen were not in fact delivered to Tarbox by Collins, but that there was simply an agreement between them that the oxen should be held as security, to be taken by Tarbox in case of Collins’ failure to pay or secure his debt to Tarbox within a certain time.

Upon these points the presiding justice instructed the jury as follows: “If Mr. Collins actually delivered the oxen to Mr. Tar-box to be kept by him, and he took possession and control of them as a pledge to secure his note, and Tarbox afterwards permitted the oxen to remain in the possession of Collins, to be re-delivered to him if Collins did not pay or secure the note in a week or ten days, and the plaintiff, without fraud against Tarbox, purchased the oxen, he would take a good title as against Tarbox. But if the purchase of the oxen by the plaintiff was not in good faith, but for the purpose of defrauding Tarbox, then Tarbox would have the right to retake possession of the oxen and hold them under the agreement as a pledge for security of his debt. But if the oxen were not in fact delivered to Tarbox by Collins, So that they were in his actual possession and under his control, but the transaction between the parties was an agreement merely that the oxen should be held as security, to be taken by Tarbox in case of failure to pay or secure the note by Collins, then such an agreement gave Tar-box no title, and he cannot contest the plaintiff’s title though his purchase was fraudulent.”

These instructions are sufficiently explicit for a proper presentation of the law of the case, and free from objection. If the counsel for the defendant desired further instructions he should have asked for them. Exceptions overruled.

Appleton, C. J., Barrows, Daneorth, Yirgin and Libbey, JJ., concurred.