Holt v. Knowlton , 86 Me. 456 ( 1894 )

Haskell, J.

The plaintiffs bargained and delivered to defendants certain machinery for the stipulated price of $1130. For this sum the defendants gave three notes of equal amount on four, eight and twelve months respectively. Defendant Knowlton gave a mortgage of real estate to secure the notes. At the same time the defendants gave their deed, in effect, that the property purchased should remain the property of the plaintiffs until the notes were paid. It contained other stipulations as to insurance, taxes, good condition, expenses of retaking and the like, and it was recorded in a town clerk’s office in Maine, presumably where the property was. The notes and deed are dated, Boston. From the evidence, however, it may be inferred that the writings were delivered in Maine, so that it was a Maine transaction, relating to property located in Maine, and to be governed by the laws of Maine, and under the law of this State would have amounted to a conditional sale. Gross v. Jordan, 83 Maine, 380: Morris v. Lynde, 73 Maine, 88.

The deed, under R. S., c. Ill, § 5, is void. To make it valid, its provisions should have been embodied in the notes. The property, therefore, was sold upon credit, the title passed to the defendants, and the plaintiffs may have judgment upon the notes given for the purchase money, if anything remains due upon them.

Nothing having been paid upon the notes, the plaintiffs retook most of the property, with consent of the defendants, sold the same, and realized therefrom, net, $813.39.

The defendants say that the plaintiffs took back the property, rescinded the sale, and that the consideration for the notes failed. The evidence does not support this contention. One of the plaintiffs testifies that he took back the property under his deed. One of the defendants testifies, the other does not testify, that he surrendered the property without any agreement whatever. We think the inference to be drawn from the evidence is, that the plaintiffs should retake the property and account for its value. There is no suggestion but that, what the plaintiffs received from the property was its fair value. This sum, therefore, must be applied to the notes in suit. It more than pays them. Judgment must be for defendants for costs in that suit.

The third note is not in suit, but remains outstanding. Upon this note should be indorsed the balance from the sale of the property above the amount of the first two notes, viz: $41.64 as of November 30, 1892. That note fell due November 13, 1892, before the writ to foreclose the mortgage given to secure it, had been sued out. The condition of the same was, therefore, broken before suit brought, and the plaintiff is entitled to judgment as of mortgage.

Judgment for defendants in the suit upon the notes. Conditional judgment for plaintiffs in the real action.