Hill v. Nutter

| Me. | Dec 28, 1889

Foster, J.

Trover for a horse taken by the defendant from the plaintiff’s possession. The defendant in support of his title offered in evidence the instrument of August 30, 1886, given by George Smith to the defendant. It was not recorded under the provisions of R. S., c. 111, § 6. Exceptions were taken to its admission on the ground that it was not recorded, and that the plaintiff had no knowledge of its existence.

The statute provides that, “No agreement that personal property bargained and delivered to another, for which a note is given, shall remain the property of the payee until the note is paid, is valid, unless it is made and signed as a part of the note; and no such agreement, although so made and signed in a note for more than thirty dollars, is valid, except as between the original parties to said agreement, unless it is recorded like mortgages of personal property * *

The instrument upon its face shows that the transaction was a conditional sale of the horse upon the conditions specified. It was .a sale of personal property for which a note was given, if not within the letter certainly within the spirit of the statute, and therefore a record of the same became necessary, to enable the defendant to hold the title to the horse, except as between the original parties to the agreement. In this case the plaintiff was not a party to the agreement, and claimed to have no knowledge of its existence. The instrument, we think, contained sufficient to embrace the word “note” within the meaning of the statute. It contained all the elements of a promise to pay, in property and money, a definite sum, and at definite times. And this court has said, in Nichols v. Ruggles, 76 Maine, 25, that it may well be doubted whether the construction of the statute is to be so limited as to apply only to such promissory notes as are recognized by the commercial law, and that it is certain that when used to express a promise to pay, whether in property or money, it is equally within the mischief to be prevented.

The delivery of the horse and the written instrument, it appears, were cotemporaneous. The case of Morris v. Lynde, 73 Maine, 88, cited by the plaintiff differs essentially in this respect from the ease before us. There, the delivery of the property was made a long time subsequent to that of the written instrument; and it was held not to be a note given for the price of the property, within the meaning of the statute, hut an order given for its future delivery, in which the terms of payment were specified.

Exceptions sustained.

Peters, C. J., Walton, Virgin, Emery and Haskell, ,IJ., concurred.