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Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

Benjamin Thompson, for plaintiff. Leslie C. Cornish and Norman L. Bassett, for defendant.

PEABODY, J. This action is brought to recover the sum of $1,000, the amount covered by policy of fire insurance issued by the defendant company upon the personal property of the plaintiff company, consisting of mill buildings and machinery on leased land located at Lakewood, in the county of Aroostook, state of Maine. The case comes before this court on report.

The mill plant was installed for the manufacture of veneer by the predecessor of the plaintiff, and extensive improvements were made after the purchase by the plaintiff, so that it stood upon its books September 1, 1901, at $172,427.

On the 29th day of December, 1900, William W. Mitchell, of Portland, Me., was appointed receiver of the plaintiff under proceedings in suit instituted by the stockholders. The receiver, through an agent of the defendant company, placed the policy in suit and six others, originally aggregating the sum of $30,000. On March 5, 1901, he received authority by decree of the court to sell the property and assets, and make report of the sale to the court for confirmation. On the 16th day of September, 1901, he sold the property insured at auction for $7,000 to George F. Duncan, of Portland, Me., who deposited the sum of $1,000, according to the conditions of the sale. On the 17th day of September, 1901, the sale was confirmed by the court. On the same date the receiver executed the bill of sale to Mr. Duncan. Duncan never went to the mill, but the receiver continued in possession and operated the mill up to the 1st of November, 1901, when it was leased by him and operated by his tenants until the 9th day of November, 1901, when the mill building and contents were entirely destroyed by fire. The receiver furnished the defendant a proof of the loss December 13, 1901.

Previous to the loss by fire, at the request of the receiver, made to the agent who negotiated the policies, the total insurance was reduced to $15,000, and the policy in suit was modified so as to cover $400 on the buildings, $466.67 on the machinery, and $133.33 on lumber and material.

Upon his application to the equity court the receiver was given permission to bring suit against the several insurance companies, and the suit under consideration was commenced April 3, 1902.

On the 28th day of November, 1902, on the petition of Duncan, the order and decree confirming the sale to him were vacated and rescinded, and the $1,000 paid by him to the receiver was ordered to be repaid.

The policy is in the Maine standard form, 59 A.-35

and contains the provision that it shall be void "if without the consent in writing or in print of the company, said property should be sold, or this policy assigned," etc. Our court has held that such a provision is valid. Waterhouse v. Gloucester Fire Insurance Company, 69 Me. 409. So the case depends primarily upon the legal effect on the policy of the receiver's sale and its confirmation by the court.

er.

To avoid the policy under this provision, the sale must be such as passed title in the property insured. Orrell v. Hampden Fire Insurance Company, 13 Gray, 431; Pitney v. Glen's Falls Insurance Company, 65 N. Y. 6; Brabin v. Hyde, 32 N. Y. 519; Boston & Salem Ice Company v. Royal Insurance Company, 12 Allen, 381, 90 Am. Dec. 151. There was no actual delivery of possession by the receiver to Duncan. In cases of the sale of personal property between individuals, where there is no question in relation to the statute of frauds or rights of subsequent bona fide purchasers or of attaching creditors without notice, the title may pass without delivery of the property. Dixon v. Yates, 5 B. & Ad. 313; Morse v. Sherman, 106 Mass. 430; Cummings v. Gilman, 90 Me. 524, 38 Atl. 538. But the validity of judicial sales depends upon somewhat different rules. By decree of the court the receiver was authorized and empowered to proceed to sell all the assets of the International Wood Company at public auction to the highest bidder, giving such notice of the time and place of the sale as to the court should seem reasonable and propThe decree gave specific directions as to the notice of sale, that the sale should be subject to the approval of the court, that the receiver should make report to the court for confirmation, and hold the proceeds subject to the further order of court. The auction sale was held September 16, 1901, according to the required notice, and the sale was made to Duncan, he being the highest and only bidder, and the receiver filed his report of the sale, which was confirmed by a decree of the court, which, after reciting facts upon which it was based, concludes as follows: "Ordered, adjudged, and decreed that said sale be approved and confirmed, and that said William W. Mitchell, receiver, is authorized and directed to make, execute, and deliver to said George F. Duncan all necessary bills of sale and assignments to carry said sale into complete effect, upon the payment to him by said Duncan of the amount of the purchase price according to the terms of sale." A bill of sale was prepared and executed by the receiver to Duncan on the day of the confirmation, which the evidence shows may have been handed to Duncan; but, if so, it was not retained, and no further payment of the purchase price was made by him. It is claimed by the defendant that thus everything had been done to entitle the purchaser to the property and the receiver to the purchase price. But we do not think that

this is the legal result of the transaction. The authorities hold that, until there has been a delivery of a deed of real estate sold at a judicial sale, the title did not pass. Slobodisky v. Insurance Company, 53 Neb. 816, 74 N. W. 270; Manhattan Insurance Company v. Stein, 5 Bush (Ky.) 652; Haight v. Insurance Company, 92 N. Y. 51; Marts v. Insurance Company, 44 N. J. Law, 478. In these cases it may be assumed that the converse would be true-that the title would pass by the delivery of the deed and a compliance with the conditions of the sale. In judicial sales of personal property the execution of instruments of conveyance is a part of the requisites of the sales. The failure of the officer of the court to comply with statutory provisions or with the decree of an equity court ordering and confirming a sale would render it nonjudicial. Freeman on Void Judicial Sales, §§ 43, 44; Mason v. Ham, 36 Me. 573.

There is some conflict of testimony relative to the fact of delivery of the bill of sale to Duncan. If made at all, it must have been only provisional. It is not such a delivery as was contemplated and directed in the confirmatory order. It was to be made by the receiver simultaneously with the payment to him of the price which he was to hold for further order of the court. Such delivery only was authorized or could have any legal effect to pass the title. This conclusion would negative a completed sale, and a mere executory contract or inchoate sale resulting from the auction and the deposit of money by the bidder would not make the policy void under the forfeiture clause. The effect of the decree of the court vacating and rescinding the order of sale may be briefly considered. In Woodward v. Bullord, 27 N. J. Eq. 508, the courts say: "The right of the Court of Chancery to set aside sales made by its officers and restrain the delivery of the deeds to purchasers cannot be doubted upon a proper case made. Campbell v. Gardiner, 11 N. J. Eq. 423, 69 Am. Dec. 598. In Collier v. Whipple, 13 Wend. 224, where the deed had been delivered by the receiver to the purchaser, the order of the chancellor for the resale was, on appeal to the Court of Errors, affirmed. Mr. Justice Nelson, in delivering the opinion of the court, said: 'As to the deed, it was taken subject to the jurisdiction of the chancellor over the sale.'"

The decree of annulment was based upon the finding as matter of fact that the sale of Duncan had not been completed; that the title did not vest in him; and upon that ground the money paid by him at the time of making his bid was ordered returned to him. This certainly would determine the status of the title between the parties to the sale, and we think the validity of the decree cannot be impeached collaterally by the insurance company in this case. Brande v. Bond, 63 Wis. 140, 23 N. W. 101; Libby v. Rosekrans, 55 Barb. 202.

The plaintiff is entitled to recover the proportion of the loss sustained which the sum insured by the policy in suit, $1,000, bears to the whole amount insured thereon, $15,000. The evidence shows that the loss exceeded the whole amount insured.

Judgment for plaintiff for $1,000 and interest thereon from February 11, 1902.

(99 Me. 406)

HUDSON v. McNEAR. (Supreme Judicial Court of Maine. Dec. 22, 1904.)

PLEADINGS-DEMURRER-AMENDMENT.

1. To a declaration containing three countsone in assumpsit, one in debt on judgment, and one in assumpsit on a promissory note-a special demurrer was filed, the demurrer sustained, and the plaintiff allowed to amend by striking out the first count in assumpsit and a portion of the third count.

Held, after a special demurrer is sustained no reason appears why the case does not then fall within Rev. St. 1903, c. 84, § 10, relating to amendments. The demurrer being disposed of, the case stands open for further disposition, as if no demurrer had been filed. (Official.)

Exceptions from Supreme Judicial Court, Piscataquis County.

Action by Henry Hudson against Alexander McNear. To an order allowing an amendment to plaintiff's declaration, defendant excepts. Exceptions overruled.

Argued before WISWELL, C. J., and EMERY, SAVAGE, PEABODY, and SPEAR, JJ.

Henry Hudson, in pro. per. Joseph B. Peaks, for defendant.

SPEAR, J. This case comes up on exceptions to the allowance of an amendment to the plaintiff's declaration in his writ. The declaration contained three counts-one in assumpsit, one in debt on judgment, and one in assumpsit on a promissory note. The defendant filed a special demurrer for misjoinder. The demurrer was sustained, and the plaintiff allowed to amend, first, by striking out the first count in assumpsit; second, by striking out in the third count the words, "by reason and in consideration whereof the said defendant became liable and promised the plaintiff to pay him the contents of said note according to the tenor thereof." This amendment leaves the amended count in the ordinary form of assumpsit upon a promissory note. There is no doubt that the plaintiff could have declared upon the note in debt by using the words appropriate to that form of action. This has been the wellsettled law of pleading at least since the opinion by Story, J., in Raborg et al. v. Peyton, 2 Wheat. 385, 4 L. Ed. 268; Exchange Bank v. Abell, 63 Me. 346. But he did not use the appropriate words. The count contained no allegation per quod actio accrevit. The last-cited case in 63 Me. seems to be conclusive upon this point. In that case

the declaration contained four counts in debt, one upon a note of hand by the indorser against the maker, and general count, and the court said: "The defendant demurred generally to the whole declaration. The count on the judgment is not questioned to be correct. The objection to the counts is that they are not technical in form. They allege an existing liability on the part of the defendant and a promise to pay in consideration thereof." This case also shows that the first count was in a plea of debt, and that no plea was stated in any count after the first; but otherwise the last two counts are in the usual form of declaring in assumpsit.

This is very similar to the way in which the plaintiff in the case at bar left his declaration after all his amendments had been allowed. He had in his third count declared in assumpsit upon a promissory note, and no plea was stated after the first count. In the case cited the plaintiff also declared on a promissory note, but the case held (page 350), "The counts on the notes are to be regarded as defective counts in debt." The plaintiff's writ still contains one count in debt and one in assumpsit. As the amendment striking out the first count in assumpsit was clearly allowable, and that striking out a part of the third count, whether allowable or not, did not in any way change the form of the count, the defendant, therefore, could not have been aggrieved by the allowance of the amendments. But the defendant goes further, and claims that the court, after the filing of a special demurrer, did not have the power to allow any amendment. He says, "I find no authority, either by statute or decision, for an amendment after special demurrer;" and cites Gould's Pleading, §§ 101, 102.

We do not think the citation sustains his position. Gould, in his fourth edition (section 101), says: "When a declaration is ill for misjoinder of causes of action, the plaintiff may, with leave of the court, amend it on payment of costs, by striking out one or more of the counts, and thus leaving upon the record but one count, or such only as are rightly joined. And, if the declaration has not been demurred to, he may also cure the mistake by entering a nolle prosequi upon one or more of the counts." The words in italics are found in the text. A note states that a nol. pros. is precisely equivalent to withdrawing or abandoning one of two classes of action improperly joined in a complaint. Section 102 reads: "But it has been several times held that after demurrer to a declaration for such a misjoinder the plaintiff cannot cure the mistake by entering a nolle prosequi upon any of the counts; since to permit this would enable him by his own act, and without paying costs, to defeat a demurrer well taken for sufficient and substantial cause." It should be here noted that a nolle prosequi is not

a demurrer, general or special; nor is it an amendment, in the broadest sense of the term. It embraces only the withdrawal or abandonment of a count. An amendment not only does this, but much more. The scope of the term "amendment" is too well established to require citation.

These sections, therefore, construed together, simply declare that after demurrer (and the demurrer here referred to must be special) the plaintiff can amend, if the declaration is amendable, only upon the payment of costs, and state the reason why he cannot, at this stage of the proceedings, after the defendant has detected and taken advantage of his error in pleading, enter a nolle prosequi (that is, withdraw or abandon any one of his causes of action, leaving the rest in proper form), without paying costs. Chitty (16th Am. Ed.) star page 228, states the same principle in this way: "The plaintiff cannot, if the declaration be demurred to, aid the mistake by entering a nolle prosequi, so as to prevent the operation of the demurrer for misjoinder, though the court will, in general, give the plaintiff leave to amend by striking out some of the counts upon the payment of costs."

To the same effect is Fernald v. Garvin, 55 Me. 417. A general demurrer to a misjoinder will not be sustained if either count is good; hence in such a case a special demurrer becomes necessary in order to reach the defective pleading. But we are unable to discover any reason why, after a special demurrer has been sustained, an amendment may not be allowed upon terms, as it would be under our statute, in case of a general demurrer. At common law the distinction between general and specified demurrer consisted in the mere form of demurring, since the office and effect of both were the same; faults in mere form being reached at common law by a general as well as a special demurrer, the only exception being the case of a demurrer for duplicity.

After a special demurrer is sustained, we see no reason why the case will not fall within Rev. St. 1903, c. 84, § 10, relating to amendments. The demurrer is then disposed of, and the case stands open for further disposition as if no demurrer had been filed. The declaration may be amended upon terms, if amendable; if not, that is the end of it.

The third count in the plaintiff's writ was amendable after sustaining the special demurrer, and the exceptions must be overruled on this account. And, as before stated, inasmuch as the amendment allowed did not change the form of the count, the defendant is not aggrieved, and the exceptions must be overruled for this reason also. Exceptions overruled.

EMERY, J. I concur. The only question presented by the exceptions is whether the amendments allowed were allowable.

Whether the declaration is thereby made sufficient and good against demurrer is another question, not decided nor presented.

(99 Me. 410)

CAMPION v. MARSTON. (Supreme Judicial Court of Maine. Dec. 23, 1904.)

CONTRACT

---- SALE -WARRANTY - EVIDENCEMERCHANTABLE ICE-WAIVER.

1. Good faith, bona fide, is an element in every contract, even though not expressed in terms.

2. A contract for the sale of ice for the market includes an assurance or warranty that the ice is of merchantable quality, unless otherwise stipulated.

3. An acceptance of ice delivered under such contract of sale, even after inspection, may be evidence of the release or waiver of such warranty, but does not of itself necessarily constitute such release or waiver.

4. Given circumstances may have more weight upon a question of waiver of nonessentials than upon a certain question of waiver of essentials in a contract.

5. In this case there was testimony which, if true, warranted the verdict. It is not made clear that it was untrue; hence the verdict must stand.

(Official.)

Exceptions from Supreme Judicial Court, Kennebec County.

Action by James E. Campion against Ellen E. Marston, administratrix, for money had and received, brought under the statute to prosecute an appeal from the report of commissioners appointed by the judge of probate for the county of Kennebec to pass upon the plaintiff's claim. Rev. St. 1883, c. 64, § 53. The commissioners returned an award for the plaintiff for the sum of $303.70. The plaintiff then appealed. The action was then tried in the court below, and the plaintiff obtained a verdict for $260.94. The plaintiff asks to have this verdict set aside on both motion and exceptions. Overruled.

Argued before WISWELL, C. J., and EMERY, SAVAGE, PEABODY, and SPEAR, JJ.

Charles P. Mattocks and Heath & Andrews, for plaintiff. L. C. Cornish and N. L. Bassett, for defendant.

EMERY, J. In the spring of 1890 Mr. Campion, the plaintiff, was the owner of a stack of ice at Sebago Lake, measuring about 1,400 tons. Messrs. Jones & Marston were a firm of brokers and dealers in ice, having their office at Hallowell. On May 24, 1900, presumably after some prior conversation or correspondence, Mr. Marston, for the firm, wrote to the plaintiff as follows: "The ice you have we can give $3.75 for F. O. B. for June, July shipment; will take it as soon as we can. The ice to be weighed on the wharf by a sworn weigher." This offer was practically accepted. It was mutually understood that the price $3.75

was the price per ton, that the place of delivery was on board ship at Portland, and that the vessels were to be furnished by Jones & Marston, the purchasers. Nothing appears to have been said or written by either party about the quality of ice, whether merchantable or not; nor does it appear that Jones & Marston inspected the ice before purchasing, though, so far as appears, they could have done so.

Under this contract of sale the plaintiff delivered the ice on board ship at Portland to the amount of 1,390 tons by weight, and Jones & Marston accepted it, and carried it away to market. It was weighed by a sworn weigher as it went on board. The plaintiff now seeks to recover the full contract price of $3.75 per ton for the whole 1,390 tons. The defendant claims a reduction in price on the ground that much of the ice was not merchantable when delivered. The pivotal question of law is whether this defense is admissible. Two subsidiary questions are presented by the exceptions, viz.: (1) Whether the contract of sale of the ice included by implication an assurance or warranty, that the ice was merchantable; (2) whether the acceptance of the ice at the place of delivery on board ship constituted a satisfaction or waiver of such warranty. Ice of a certain degree of purity and hardness is a merchantable commodity, and as such has a quotable market price. If of less than that degree of purity and hardness, it has no quotable market price, and is not merchantable-is not sure of a sale. Ice is not graded like grain or cotton, each grade having its own market and price. If not merchantable, its sale at any price is uncertain. Indeed, the term "ice" in the trade means "merchantable ice." Hence, whenever a contract of sale of ice is made, it is a contract of sale of merchantable ice, unless otherwise stipulated. The purchaser becomes entitled to receive merchantable ice. Good faith requires the seller to furnish it. Good faith, bona fides, should be as much of an essential part of a contract now as it was in the time of Justinian.

Ice is homogeneous. A particular lot of ice has no individuality like a domestic animal, a building, a parcel of real estate, a factory, a machine or plant, or any other specific individual article, where the purchaser ordinarily has a choice and makes an examination and selection. Of course, if the purchaser of ice does in fact examine ice before purchasing, and buys upon his own judgment, he may, perhaps, come under the rule of caveat emptor; but this purchaser is not shown to have done so. The plaintiff was offered and accepted what it conceded to have been the price for merchantable ice. In law, as well as in morals and honor, he must be held to have promised that his ice to be delivered was of that quality.

Messrs. Jones & Marston received the ice

into their vessels at Portland as delivered. While being taken from the cars, weighed, and put on board ship it was open to view and inspection, and was seen by their agents. These circumstances may be evidence, and even strong evidence, that they accepted the ice bargained for, and in full satisfaction of the contract of sale, including all that good faith demanded of the plaintiff; but the circumstances do not in themselves constitute, as a matter of law, an acceptance in satisfaction or waiver of the plaintiff's promise that the ice was merchantable. Jones & Marston were not obliged to decide the matter then. They could lawfully have refused to receive the ice if not merchantable; or they could have taken it, leaving the question of rebate for unmerchantable ice to be determined afterwards. It does not necessarily follow from their acceptance of the ice that they released the plaintiff from his promise or obligation that the ice was merchantable. Whether they did in fact take the ice as full satisfaction of the contract of sale, and thus release the plaintiff from that obligation, was a question of fact for the jury.

We think the foregoing propositions are correct, and well founded in reason and authority. See Warner v. Arctic Ice Co., 74 Me. 475, and Morse v. Moore, 83 Me. 473, 22 Atl. 362, 13 L. R. A. 224, 23 Am. St. Rep. 783, where the subject-matter and the authorities, including those cited by the plaintiff here, are fully considered. We think the above Maine cases are decisive of the principle for this state, whatever the law of New York or other states.

We think this conclusion overrules all the plaintiff's contentions except one. He urges that the presiding justice, by his qualification of a requested instruction, weakened its forces to his legal detriment, and deprived him of the proper full force of the facts assumed as evidence of waiver. His request was as follows: "Seventh. That if they find that Jones & Marston had an opportunity to inspect the ice when loaded on the vessels, or that Jones & Marston employed an inspector to examine the ice when loaded, and such inspector did so examine it, such facts would be evidence tending to show a waiver of the implied warranty. Whether the proven facts constitute a waiver is for the jury. (Requested after giving of charge, without prejudice to requests refused.)"

The presiding justice said (repeating the request): "I give you that with certain qualifications, gentlemen. If Jones & Marston had such opportunity to inspect the ice as would afford them knowledge of its condition, or if, through an inspector, they inspected it, then that would be evidence tend. ing to show a waiver on their part; but it does not necessarily prove a waiver of the full performance of the contract. Inspection, knowledge particularly, is strong evidence of a waiver of exact compliance with

the terms of the contract. It is not such strong evidence of a waiver of essential performance, but its force and weight is for you. A party, when he has bought goods, and comes to receive them, has a right to waive performance on the part of the other party, and, if he does waive it, he cannot afterwards call for the performance of it; but whether he does or not is a question of fact for you to determine from all the circumstances in the case bearing upon the surroundings, and his conduct, and opportunities and knowledge of the time."

The whole instruction is within the proposition laid down. The jury were distinctly instructed that the facts assumed were evidence of a waiver, but did not necessarily prove a waiver of full performance; that they were strong evidence of a waiver of exact compliance with the terms of the contract, but not so strong evidence of a waiver of essentials in the contract. We think it evident that from given facts a waiver of nonessentials is more easily and safely inferred than is a waiver of essentials. Moreover, the jury were further explicitly told that the force and weight of the facts (in other words, the inference to be drawn from the facts) were for them. We cannot see in the instruction any prejudice to any legal right of the plaintiff.

As to the motion, a study of the evidence discloses considerable conflict of testimony. There were numerous circumstances testified to from which different inferences might be drawn by different men. There was certainly testimony, which, if true, was sufficient to prove that the ice was far from merchantable. The plaintiff earnestly contends that this testimony was untrue, and even manifestly so. This is not so clear to us as to him and his counsel. Two commissioners have heard the case, and found against the plaintiff. Upon his appeal to a jury, that tribunal has also found against him. Whatever doubts he may have raised in our minds, he has not demonstrated to us that the commissioners and jury were undoubtedly wrong. Hence his motion must be overruled.

Exceptions and motion overruled.

(99 Me. 399) CASSIDY v. ROYAL EXCHANGE ASSUR. OF LONDON. (Supreme Judicial Court of Maine. Dec. 22, 1904.) INSURANCE-POLICY-CONSTRUCTIONAWARD-ESTOPPEL.

1. The plaintiff held an insurance contract in the form of the Maine standard policy, in the sum of $1,000, upon certain lumber situated in two or more piles more than 100 feet apart. A loss occurred, and referees were appointed, who found only the value of the lumber destroyed, without determining whether more than one pile of lumber was damaged, and whether the damaged piles were more or less than 100 feet apart.

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