James C. Churchill & al. v. Asa Bailey, 13 Me. 64

The action was continued for advisement, and the opinion of the Court afterwards delivered by Weston C. J. After Gould, the witness, was released by the plaintiffs, he had no remaining interest in their iavor.

If a release to Gould would not directly dicharge Stanley, no claim could be made against the latter, which would subject Gould to contribution ; for he was released “ from all and every claim and demand growing out of, or arising from the sale.” There is evidently a mistake in the date of the release, but the subject matter is very clearly described, and the suit to which it refers, and would be sufficient for the protection of the witness. It was competent for the witness to testify, as to the true time when the sale was made to the plaintiffs, notwithstanding the bill has a different date.

Instruments take effect from the time of their delivery, whatever date they may bear. No declarations of Parker were received in evidence, but what were part of the res gesto. The jury have negatived all fraud in the transaction under consideration, on the part of Gould or of the plaintiffs. It was competent for Gould to proscribe his own terms, if done in good faith, which the jury have found, in his bargain with Parker in relation to the first horse. That never having been paid for, remained Gould’s property, until he consented to exchange him for another. This he might do through the agency of Parker.

And when he approved of the exchange made by his agent, it had relation back to the time when it was made. No creditor of Parker was thereby injured. He had at no time, as the law then stood, art attachable interest in either horse. If Parker, in the discharge of his agency, agreed to give boot, he would thereby have a claim upon Gould, bis principal, for indemnity j but this would draw after it no lien or interest in the horse, received, in exchange.

With regard to the sum of thirty dollars paid by him to Gould, with a view to the purchase of the horse, it was not agreed that he should thereby obtain an interest in common in the horse, in proportion to what he had paid, but it was express Jy stipulated, that it should remain the property of Gould, until all the payments W'ere fully made. The attachment of the second horse by the defendant, as the property of Parker, at the suit of Turner, liad no effect upon the rights of Gould or of the plaintiffs.

Gould might lawfully employ Parker as his agent, without subjecting the property to be effected by a creditor of the agent. As to him, the interference of such creditor would be a mere nullity. Gould got possession of his own property peaceably, and had a perfect right to sell it to the plaintiffs. He was the active partner, in the firm of Gould & Stanley ; and had ample authority to dispose of the property. The plaintiffs paid a full and valuable consideration for the horse; and when it was put into their stable, it became their property, and was in their actual possession.

Wc perceive no error in the proceedings of the Judge in receiving testimony, or in withholding or giving instructions to the jury. Judgment on the verdict.