| Me. | Nov 17, 1897
The only question presented by the exceptions in this case is whether, upon all the facts in the case, the sale of butterine alleged in the indictment did or did not take place in the county of Kennebec.
From the undisputed facts it appears that on December 14, 1896, one McLaughlin, then residing in Augusta, wrote to the
“ Old Orchard, Me. Dec. 14th, 1896.
Portland Beef Co.
Gentlemen.
Quote me price of Butterine, the same I have used the past two seasons (Lincoln flats colored). Upon receipt of order how soon can you ship me three (3) tubs, C. O. D. American Express ? An early reply will oblige,
Respy yours,
C. E. McLaughlin.”
The respondent on the same day answered as follows:—
“Portland, Me. Dec. 14th 1896.
Mr. C. E. McLaughlin, Old Orchard,
Dear Sir:
Replying to your letter of Dec. 14th, quote you 3 40 lb tubs butterine 14 c. If we receive your order at once same will be shipped in car from Chicago Thursday, arriving here a week from Monday.
Yours respectfully,
H. B. Peters.”
On the following day, McLaughlin wrote this letter to the Portland Beef Company:—
“ Old Orchard, Me. Dec. 15th, 1896.
Portland Beef Co.
Gentlemen,
You may ship me via American Expi’ess, C. O. D., as soon as possible 3 40 pound tubs Butterine (Lincoln flats colored), same as I have been using, at 14 c.
Very Resp’y,
C. E. McLaughlin,
Old Orchard.”
Although McLaughlin’s letters were dated “ Old Orchard ” for reasons of his own, they were in fact written and mailed at Augusta. To the last letter the respondent made no reply, but on
It is contended on the part of the state that these transactions constituted a sale of the butterine at Augusta. It is strenuously claimed that the respondent’s letter of December 14 was an offer or proposal to sell McLaughlin three forty-pound tubs of butterine at fourteen cents a pound, and that McLaughlin’s letter of December 15, written and mailed at Augusta, was an acceptance of that offer. Hence it is argued that the sale was made at Augusta.
If the state is right in its premises, it is also right in its conclusion. If we regard the respondent’s letter as an offer, the acceptance of that offer completed the trade, accomplished the sale, struck the bargain, and in accordance with well-settled principles of law, such a sale would be deemed to have been made at Augusta, the place where the offer was accepted.
But the trouble with the position of the state is, that the respondent’s letter of December 14 cannot be considered as an offer or proposal. It was simply an answer to McLaughlin’s letter of inquiry of the same date. McLaughlin asked for a quotation of prices, and how soon the butterine could be shipped on receipt of an order. The respondent gave the desired information, nothing more. The most that can be said is that it contemplated a possible offer by McLaughlin to buy, if the price and time of delivery were satisfactory. If after this, the respondent had refused to fill McLaughlin’s order of December 15, he could not have been held liable for a breach of contract to sell. The letter of the respondent contained no undertaking whatever to sell. Howard v. Maine Industrial School, 78 Maine, 230; Smith v. Gowdy, 8 Allen, 566.
In McLaughlin’s letter of December 15, we find the first offer. It was an order, an offer to buy. His proposition, to buy was accepted by the respondent, by delivering the butterine ordered to
But the state contends that, taking the transaction as a whole, it is evident that the vendor did not intend to part with the title to the butterine, until it was paid for by the consignee to the carrier; that from the fact that the butterine was shipped “ C. O. D.”, which means to “deliver upon payment of the charges due the seller for the price, and the carrier for the carriage of the goods,” State v. Intoxicating Liquors, 73 Maine, 278, the jury would be authorized to find that the vendor reserved the jus disponendi until payment. And authorities to this effect are cited. But such is not the law in this state, in the absence of controlling circumstances ; and there was nothing in the order, or in the acceptance and the shipment of the butterine in this case, to take it out of the general rule touching the shipment of goods on order C. O. D. The delivery to the carrier designated by the consignee was a delivery to the consignee, subject to the vendor’s lien. The language of Mr. Chief Justice Peters in State v. Intoxicating Liquors, supra, is full and expressive upon this point: “The contract stands upon the simple rule of the common law. The seller was entitled to his price, and the buyer to his property as concurrent acts. The title passed to the vendee when the bargain was struck. Any loss of the property by accident would have been his loss. The vendor had a lien on the goods for his price. The vendor could sue for the price, and the vendee upon a tender of the price, could sue for the property.” We adhere to this rule.
It further appears that after the butterine was shipped, the Portland Beef Company, represented by the respondent, attempted to attach it at Old Orchard, and did attach it at Augusta, after McLaughlin had paid the C. O. D. bill, to secure an old debt due from' McLaughlin. From the evidence it is claimed that an inference may be legitimately drawn, and that the jury were authorized to find, that it was not the intention of the respondent to part with the title until the butterine was paid for; that the respondent shadowed the goods so that they could be attached as soon as they became the property of McLaughlin by payment. We think
There is no evidence in the case which would warrant the jury in finding that the sale of the butterine took place at Augusta. The jury should have been so instructed, as requested by the respondent, in substance. The presiding judge declined to so instruct, and the jury were permitted to find that the sale did in fact take place in Augusta, a finding which had no evidence to support it.
Exceptions sustained.