Calef v. Brinley , 58 N.H. 90 ( 1877 )

If the Kennards delivered the lumber intending to part with their title, and if Brinley James accepted it, the title passed to them, although the notes mentioned in the contract had not been given. Kelsea v. Haines,41 N.H. 246, 253. The rescinding of the contract, and the taking of the logs in replevin by the Kennards, did not destroy Calef's lien, which was paramount to all other claims except public taxes. Gen. St., c. 125, s. 14. The vendor's right to rescind contracts of sale and reclaim the property is always subject to the intervening rights of third persons acquired in good faith. Bradley v. Obear, 10 N.H. 477; Webb v. stone, 24 N.H. 288.

If the contract for hauling was entire, the plaintiff Calef had a lien on all the logs for the whole price of hauling, for sixty days after the job was completed — Bean v. Brown, 54 N.H. 395; and whether the hauling of the one tree was a part of the same contract, was a question of fact for the jury. The lien was not waived by taking the note, unless such taking was in payment of the amount due for hauling the logs, or a substitution of a different contract for that to which the lien attached. Gen. St., c. 125, s. 16. The note was not taken in payment, nor a different contract substituted, unless that was the understanding of the parties at the time. Elliot v. Sleeper, 2 N.H. 527; Clark v. Draper, 19 N.H. 423; Jaffrey v. Cornish, 10 N.H. 505; Woodward v. Miles, 24 N.H. 289. The instructions to the jury were correct.

Judgment on the verdict.

BINGHAM, J., did not sit.