Scott v. Whittemore, 27 N.H. 309

Bell, J. The first question presented by this case is that relative to the demand by the plaintiff upon the defendant, for the goods included in the receipt. Evidence was offered by the plaintiff tending to show that such a demand was made on the 22d of December, 1851, which was the thirtieth day after the rendition of the judgment; and, as the property is stated to have continued in the possession of the debtor, the last day on which a demand could be effectually made so as to preserve the plaintiff’s right of action.

None of the property was delivered, and the defendant then said he could not deliver the property at that time, for Car-kin and his son were not at home. Upon this evidence, we are bound to understand there was. a sufficient demand that tile defendant’s contract should be performed, and an entire failure to perform it. It was not necessary for him to refuse. It was enough that, when requested to perform his contract, he did not do it. By that neglect and failure the plaintiff’s right of action became perfect.

If the reply of the defendant was intended as an excuse for non-performance, it did not, in point of law, constitute any excuse, and there is no evidence tending to show that the plaintiff made any reply to that suggestion. The motion for a nonsuit was then properly refused. The next question relates to the effect of the proceedings of the parties on the 25th day of December, three days after the plaintiff’s time for making a demand had expired.

On that day, the plaintiff went to the defendant, at Carkin’s, and told him he was ready to receive the property, and there was some conversation as to the horses, oats and rye, in which the parties differed in their understanding of the contract, and the plaintiff, saying it is evident you cannot deliver the property, and I am not going to be caught in any trap, then went away. This transaction can only be regarded as an offer still to receive the property, and a proposition not to insist on his legal rights, if the property should be then delivered.

It is apparent the offer was not accepted; the property was neither delivered nor promised to be delivered. It was entirely at the option of the plaintiff to withdraw his proposition when he chose, at any time before his terms were complied with. He had a right to judge from what he saw, as we may judge from what is stated in the case, that it was not in the defendant’s power to comply with the plaintiff’s offer.

In our view of the case, the question of construction of the receipt for one hundred bushels of rye and one hundred bushels of oats was entirely immaterial, since the plaintiff, by abandoning his attempt to obtain the property, put an end to his proposal, and the rights of neither party depended' on that point. Still, we entertain no doubt that the ruling of the court was correct.

The contract was entirely clear and unambiguous in its terms, meaning what the plaintiff understood by it, and nothing else; and it is not a point requiring the citation of authorities here, that in such a case no parol evidence can be introduced to control, qualify or explain a written contract. The defendant offered to prove that many of the articles, included in the receipt, were included in a mortgage to one Henshaw, but the court excluded the evidence, we think correctly.

An attachment of goods, subject to a mortgage as the property of the mortgager, is not void; it is, at most, merely voidable at the election of the mortgagee. He may or may not choose to insist on his rights as mortgagee, and thus to avoid the attachment. Until he does so elect, the attachment remains valid, though defeasible. If a receiptor has merely performed his duty as such, and during the time he has continued to hold the property no demand has been made, he is not subsequently liable to any action at the suit of the mortgagee.

Much less -will a receiptor be liable to the mortgagee, who has suffered the property quietly to remain in the hands of the mortgager, as appears to have been the case in this instance. It would clearly be a perfect defence that the property had been taken from his possession by a mortgagee, or other person having a paramount title ; and it might, perhaps, be sufficient to show that he had been subjected to an action by proper proceedings on the part of such claimant.

But as the officer who has attached and taken possession of property is liable not only to the creditor, in case he recovers, for the property required to be applied to the discharge of his judgment, and to the debtor for the overplus, or for the whole, if the creditor fails in his suit; but to all third persons, who have rightful claims upon it, it follows, of course, that his bailee is accountable to him for the entire property committed to him, unless he shows that by giving it up to superior claimants, or suffering it to return to or to remain in possession of the debtor, the officer is relieved from all their claims upon it.

If this bailee had appropriated this property to his own use, the officer is entitled to recover its value, to enable him to meet the claims of the creditor, or those of Henshaw or of Carkin. It appeared that a part of the hay attached was fed by the defendant to the horses attached, but the terms of his contract bind him to keep the horses without expense, and to deliver to the plaintiff all the hay included in the receipt of the plaintiff. There is no pretence, therefore, by the terms of the contract, that the defendant is excused by this use of the hay from returning or accounting for it.

But it appears by evidence introduced for the defendant, that on the 14th of November, 1851, he served a notice on the plaintiff, that he would deliver the' property to him on the 18th, requesting him to receive it. This notice, the defendant contends, exonerates him from his contract to keep the property without expense; but we are unable to perceive any legal ground for that idea. This notice was, at most, a request to be relieved from his contract contained in the receipt, which the plaintiff might assent to or not, as he pleased.

It seems to us entirely immaterial, in this case, whether the debtor did or did not use his horses, or whether or not the hay amounted to seventy-five tons on the 25th of December. If it was contended that the horses were impaired by such use, or that the hay was reduced in quantity below the amount receipted for, the proof might have some bearing; but no such points are made by the plaintiff. The evidence relating to the property embraced in the second receipt, was entirely incompetent.

The property was not delivered when the demand of it was made by the plaintiff, and the defendant said he could not then deliver it, for Carkin and his son were absent. It cannot avail him to show that this property was ready to be delivered. It should have been actually delivered, or so offered that the responsibility for its non-delivery would rest upon the plaintiff. If it had been a contract to be performed at a particular day, and the property was ready at the day, and no one came to receive it, it might have had the effect of a tender, but that was not this ease.

If the readiness insisted on would have been effectual, still the evidence shows the property included in this receipt was not ready. The chattels enumerated in it were all valued in one sum ; they could not, therefore, be delivered in parts ; the plaintiff was not bound to receive less than the whole. The two hundred kegs of powder, named in the receipt, had been drawn away and sold by Carkin, and could not be returned. It makes no difference that the same quantity of powder, of the same quality, and put up in the same manner and packages, were ready to be delivered in its stead.

The plaintiff might accept them if he chose; but it was optional with him to do so or not. It was immaterial, in the view we have taken, that articles, valued in the receipts at $2,416, remained in the same condition as when they were attached, as the defendant offered to prove, and that he offered to return them on the 25th of December. The defendants liability was fixed by the demand on the 22d, and the offer to return a part of the goods on the 25th, was only effectual if accepted.

The amount of the judgment recovered by Moore, in the action in which these attachments were made, was for damages $1,936,40, and costs $13,68. For the amount of these sums and interest from the judgment, the plaintiff is answerable to Moore. To which is to be added the amount of the fees and poundage on the execution, as he is compelled to make the money to pay the execution out of the money he will recover on account of the property attached, and to pay it over to the creditor.

The case finds that “ the property was, at the time of the attachment, in the possession of the debtor, John Carlrin, and remained so from the date of the receipt until the demand by the plaintiff.” The officer is, of course, not liable to Carkin. No evidence shows any demand or claim made upon him on account of any third person, who might have an interest in the property, and he is not liable to any such third person; he is not, therefore, entitled to recover any thing on either of these accounts.

The plaintiff, upon remitting the damages given by the verdict for the excess, may take judgment for $1,950,08, and interest from the date of the judgment, and his fees and poundage.