Gleason v. Drew

Weston J.

delivered the opinion of the Court at the. ensuing July term in Waldo.

The boat in question, once the property of the plaintiff, was sold and transferred by him to Harrington. Before it was taken by the officer, the defendant, was the sale rescinded, or was a lien created upon it, in favor of the plaintiff as mortgagee ? It is not pretended that in what was subsequently done, there was any fraud or want of good faith, either in the plaintiff or Harrington. Half the purchase money, viz. forty dollars, was paid. The plaintiff wanted the residue. Harrington was unable to pay it. He thereupon gave up the bill of sale, he had received of the plaintiff, under an agreement that it should be reconveyed to him, upon paying the remaining forty dollars. The plaintiff had no convenient place to keep the boat, and did not take her into his own hands, but engaged the defendant, who had a convenient.place, to keep her for him. He was further authorised to sell her ; but subject to the plaintiff’s rights. The contract of sale between the plaintiff and Harrington, was vacated and rescinded by mutual consent; and the evidence of it given up, before the right of any third person had intervened. The intention of the parties manifestly was, to restore the plaintiff to his original title. The plaintiff was not to hold under Harrington; but the purchase of the latter was relinquished and given up; reserving a right to repurchase, upon favorable terms. In this there was nothing colorable or collusive; nothing done to defeat or defraud creditors.

But if the same formalities are necessary to rescind a contract for the sale of personal property, exceeding thirty dollars in value, which are required in making it, did they exist in this case ? The plaintiff held the note of Harrington, which does not appear to have been given up. But by this transaction it was paid, the plaintiff resuming the property for which it was given, and the defendant undertaking to keep it for him. Upon these facts, the plaintiff never could have recovered-the note, from which Harrington was virtually discharged, and against which he had and has a good de-fence. By rescinding the first sale, or by the resale, if it is so to be regarded, he paid his own debt, whether lie received back the evidence of it or not; and this payment, in a case not infected with fraud, was a sufficient consideration, not executory but executed, for the resale. Here then payment was made. There does not seem to be any good reason, why this did not revest the property in the plaintiff, as between the parties; more especially as Harrington agreed to keep the boat, as the agent of the plaintiff. Tuxworth v. Moore, 9 Pick. 347. If Harrington had afterwards converted the property to his own use, we do not see but he must have been liable to the plaintiff, in an action of trover. Such are the views which may be taken of the case, regarding it as a resale, requiring the formalities prescribed by the statute of frauds. But we do not place our decision entirely upon this ground.

What took place between the parties after the first sale, may be regarded in substance as a mortgage for the residue of the consideration. We are not satisfied that a mortgage of personal property, the validity of which is now well settled, is a contract of sale, within the meaning of the third section of the statute of frauds,Stat. 1821, ch. 53, ' That manifestly contemplates an absolute sale, where the vendor is to receive payment, and the vendee the goods purchased. But the mortgagee is not intended or expected to pay any thing. His lien is created, to secure what he is to receive. Nor is he to take possession, unless his security requires it. That is retained by the mortgagor; and herein a mortgage differs from a pledge. As this is a contract then, in which neither payment nor delivery is expected, we are not prepared to say that it comes with-' in the statute. Upon the whole case, we are of opinion that the plaintiff is injustice, and by the agreement between him and Harrington, legally entitled to hold the boat, for which he has never been paid. If it is a sale, contemplated by the statute of frauds, payment was virtually and substantially made. If not, the statute is not in the way of the plaintiff’s recovery.

Judgment for plaintiff.