Drew v. Livermore , 40 Me. 266 ( 1885 )

Rice, J.

This is assumpsit on an accountable receipt. The property described in the receipt was a vessel of which the defendant was mortgagee. It was attached as the property of the mortgager. The mortgage was of a date anterior to the attachment and receipt. The debt secured by the mortgage to the defendant exceeded the sum for which the vessel was sold.

The defence to this action is, that the defendant was the owner of the property attached and receipted for by virtue of his mortgage.

It has been repeatedly decided that when property has been receipted for, as attached on a writ against a particular person, the receipter cannot defend an action brought against him for a refusal to deliver the property according to the terms.of his receipt, on the ground that he was the owner of the property. He is estopped by the admissions in his receipt from.setting up that defence in an action upon the receipt. Johns v. Church, 12 Pick. 557; Robinson v. Mansfield, 13 Pick. 144; Burseley v. Hamilton, 15 Pick. 40; Sawyer v. Mason, 19 Maine, 49 ; Penobscot Boom Cor. v. Wilkins, 27 Maine, 345.

The reason given for this rule, by Weston, C. J., was, “for if he will suffer his own goods to be attached as the property of another in his presence, without interposing his ólaim, and will thereupon recognize the title of the debtor thereto, by an instrument under his hand, he should not be permitted afterwards, to avoid his liability as receipter, any more than he would be permitted to defeat a sale of his goods, which he sees made as the property of another, without notifying the purchaser of his own title.”

But it is competent for a receipter, who does not claim to be the owner of the property, to show in defence, that it belonged to some person other than the one as whose it was attached. Fisher v. Bartlett, 8 Maine, 122.

In the case of Lathrop v. Cook, 14 Maine, 414, the receipter was permitted to set up his own title to the property receipted for, but it was on the ground, that the receipt in that case contained no admission that the property belonged to the original debtor.

The offer of the defendant to prove, that at the time this receipt, was given he denied the validity of the attachment, could only be admitted to affect the question of damages; not to qualify the terms of the receipt. Burseley v. Hamilton, 15 Pick. 40. He entered into a written contract, the terms of which are clear and explicit. There is no suggestion that any fraud was practiced upon the defendant, nor that he acted under mistake of fact in relation to this matter. By that contract he must be bound. He voluntarily became the bailee of the officer, and cannot avoid his contract by showing informality or invalidity in the attachment or judgment, so long at least, as that judgment stands. Brown v. Atwell, 31 Maine, 351.

The suit of Ross v. Cleland, does not appear to have been prosecuted as a lien claim; that fact, however, does not affect the rights of the parties in this case.

A default must be entered and judgment for the amount agreed by the parties.

Defendant defaulted.