(80 N. H. 172)

(115 A.)

WRIGHT et al. v. NOYES et al. (No. 1757.) (Supreme Court of New Hampshire. Merrimack. Oct. 4, 1921.)

1. Fraud jury.

Manchester Farm Agency as the commission for securing the sale of the plaintiffs' farm in Pembroke to the defendants. Trial by jury, and verdict for the plaintiffs. At the close of the plaintiffs' case and at the close

64(1)-Waiver held question for of the evidence, the defendants moved for a nonsuit and for a directed verdict. The motions were denied, and the defendants excepted. Exception overruled. Judgment for plaintiffs.

In action for deceit by defendant purchasers' representation that they had not seen plaintiffs' agent for sale of the property purchased, resulting in plaintiffs' reducing the price by the amount of the agent's commission, which, however, plaintiffs were later obliged to pay their agent on his showing that he had negotiated with defendants, the question whether plaintiffs waived their rights against defendants for the deceit by failing to notify defendants of the agent's claim upon learning of it prior to the passing of deeds, and merely inquiring of defendants whether they had seen any real estate agent, which inquiry defendants answered in the negative, held for the jury. 2. Fraud

defense.

Foster & Lake, of Concord, for plaintiffs. Nathaniel E. Martin, of Concord, for defendants.

SNOW, J. The plaintiffs placed their farm for sale in several agencies, among them Edward S. George, doing business as the Manchester Farm Agency, reserving the right in each case to place it with other agents or to sell it themselves. They advertised it under their own name. The de

22(I)-Contributory negligence no fendants claimed to have seen the plaintiffs'

Contributory negligence of defrauded plain tiffs is no defense where the defendants' rep

resentations were made with the intention of misleading plaintiffs, and if a misrepresentation is made with fraudulent intent, plaintiff need show only that in relying upon the representation he honestly believed it true.

3. Appeal and error 861, 938 (3)-On reservation of question, law court limited to grounds of exception stated; no presumption all material facts are reported on a ground of exception not stated.

When a question of law is reserved on a statement of facts in lieu of a verbatim report of the testimony, and the grounds of exceptions are specifically stated without enlarging words, the parties are necessarily limited to those grounds; and it cannot be presumed that all material facts are reported on a question thus impliedly excluded from consideration.

4. Fraud 38-Sult held not prematurely brought.

In action for deceit by defendant purchasers' misrepresentation that they had not seen plaintiffs' agent for sale of the property purchased, resulting in plaintiffs' reducing the price by the amount of the agent's commission, which, however, plaintiffs were later obliged to pay their agent on his showing that he had negotiated with defendants, the contention that the action was prematurely brought because plaintiffs did not pay the agent the commission until a few days before trial could not be sustained, for plaintiffs' right of action accrued when their liability to the agent attached when the sale was consummated and deed delivered, and payment before trial only made more certain the proof of damage.

Transferred from Superior Court, Merrimack County; Sawyer, Judge.

Case for deceit by Joel Wright and others against Arah W. Noyes and others, to recover $312.50 paid by the plaintiffs to the

advertisement, and interviewed them in person as to price. Upon the defendants' assurance that they had not seen any agent, the plaintiffs reduced the price by the amount of the agent's commission, and entered into a written agreement of sale with the defendants which the plaintiffs regarded as binding. The plaintiffs' evidence tended to prove that the defendants had previously seen Mr. George who gave them a description of the premises, the terms of sale, and a key to gain admittance for purpose of inspection, and tried to effect a sale to them.

[1] The defendants' motions for a nonsuit and for a directed verdict were based on the fact that, after the agreement for sale was made and prior to the passing of the deeds, the plaintiffs had learned that Mr. George claimed that the defendants were his customers, and that he would claim a commission if the property was conveyed to them. Defendants contend that the plaintiffs should have notified defendants of George's claim; that plaintiffs' failure to do so was a fraud on their part, and being guilty of fraud themselves, plaintiffs are now estopped to claim fraud on the part of the defendants; that such failure was a waiver of any claim against defendants to recover the commission paid George.

It cannot be said as a matter of law that the plaintiffs should have pursued the course suggested by defendants' counsel. The rule governing the plaintiffs' conduct only required them to do what reasonable men would have done under the circumstances in which they were placed. They were confronted by a situation in which they were obliged to act. Relying upon the defendants' statement that they had not seen any agent with whom the property had been listed, the plaintiffs had drawn up and entered into the agreement with the defend

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ants for the sale of the property at a re- of facts in lieu of a verbatim report of the duced price. Afterwards, learning that testimony, and the grounds of exceptions George claimed the defendants as his cus- are specifically stated without enlarging tomers, and that he would claim a commis- words, the parties are necessarily limited sion if the place were sold to them, plain- to those grounds. It cannot be presumed tiffs again inquired of both defendants if that all material facts are reported upon they had seen any real estate agent having a question thus impliedly excluded from the property for sale before bargaining for consideration. Rowell v. Chase, 61 N. H. it with the plaintiffs, and both denied hav- 135, 136; Douyette v. Nashua Street Railing had any communication with any such way, 69 N. H. 625, 626, 44 Atl. 104. agent. It cannot be said as a matter of law that reasonable men might not have accepted as final such a sweeping denial as to facts concerning which defendants could not have been mistaken and which they could not have forgotten. That the plaintiffs did what reasonable men would have done under the circumstances is settled by the verdict of the jury. That the jury might on the evidence have found to the contrary raises no question of law.

[2] Defendants further argue that plaintiffs cannot recover, because they failed "to act with reasonable prudence." If contributory negligence were a legal defense to the action, the plaintiffs were not "bound to exhaust all the sources of information, but to give due attention to those to overlook or disregard which would be negligence.

It is not the exercise of caution which the law in this respect requires; it is only the absence of negligence." Hoitt v. Holcomb, 32 N. H. 185, 205. But the evidence tends to sustain the plaintiffs' allegations that the false representations were made with the intention to mislead the plaintiffs. It is now settled in this state that

"In an action for an intentional wrong contributory negligence is not a defense." Bachman v. Insurance Co., 78 N. H. 100, 106, 97 Atl. 223, 226.

[4] Assuming, however, that defendants have lost no rights by proceeding to trial and verdict without raising this issue by appropriate pleadings (rule 19, Superior Court) and that this question was intended to be saved to defendants, it does not follow from the facts reported that the suit was brought prematurely. There was evidence upon which it could be found that the Manchester Farm Agency was the procuring cause of the sale, and that liability to the agency for the amount of the commission attached to the plaintiffs upon the consummation of the sale and delivery of the deed. Such liability, and not the liquidation of it, constituted the damages to the plaintiffs. The right of action accrued to the plaintiffs when their liability to the agency attached. The payment before trial only made more certain the proof of damage which otherwise must have been established upon less satisfactory evidence. Salinger v. Salinger, 69 N. H. 589, 592, 45 Atl. 558.

Exceptions overruled; judgment for the plaintiffs.

All concurred.

NICHOLS v. HENRY W. MASON & CO. (No. 5532.)

1921.)

"The law makes it the duty of every one to Supreme Court of Rhode Island. Nov. 22, use ordinary care to avoid being injured by another's negligence; but it imposes on no one the duty to use such care to avoid being injured by another's intentionally wrongful act. In actions for negligence, contributory negligence is a defense; in actions for intentional injuries, it is not." Cunningham v. House Furnishing Co., 74 N. H. 435, 437, 69 Atl. 120, 121, 20 L. R. A. (N. S.) 236, 124 Am. St. Rep. 979.

"If the misrepresentation is made with a fraudulent intent, it is only necessary for the party defrauded to show that in relying upon the representation he honestly believed it to have been true." Conway Bank v. Pease, 76 N. H. 319, 328, 82 Atl. 1068, 1073; Bachman v. Insurance Co., supra.

It could be found that the plaintiffs believed that the defendants were telling the truth.

[3] The defendants rely in their brief, as an additional ground for their motions, upon the fact that the plaintiffs did not pay the commission to the agency until a few days before trial, and contend that the suit was therefore prematurely brought. When

a

Mason & Co. Trial judge granted defendant's Action by J. E. Nichols against Henry W. motion for new trial after verdict for plaintiff, and plaintiff and defendant each filed a petition to establish the truth of his exceptions (115 Atl. 113). Truth in part established, and plaintiff has filed a corrected statement of exceptions. Truth of plaintiff's exceptions established.

John P. Beagan, of Providence, for plaintiff. Waterman & Greenlaw and Charles E. Tilley, all of Providence, for defendant.

PER CURIAM. In the opinion heretofore given by us in this case the correctness of the transcripts of evidence filed by the parties was established as amended, and the truth of the defendant's exceptions was established.

In accordance with the permission of this statement of all of the exceptions upon which court the plaintiff has now filed a corrected he relies. By reference to the transcripts said exceptions of the plaintiff appear to have been taken by him, and they further appear to be stated separately and clearly; their truth is

(120 Me. 496)

STATE v. PAIGE TOURING CAR.

(115 A.)

L. 1917. It was thereupon duly libeled, and the Jesse E. Knight Automobile Company appeared in due course and filed its claim

(Supreme Judicial Court of Maine. Nov. 16, under the above-described agreement of sale.

1921.)

Intoxicating liquors 251, 255-Protection afforded owner of car used in violation of prohibition laws.

The judge of the municipal court denied the claim of the Automobile Company, and ordered the automobile forfeited to the county, from which decision an appeal was Under Laws 1917, c. 294, where an automo- taken by the claimant to the Supreme Judibile is seized while engaged in the transporta- cial Court, from which court the case is now tion of intoxicating liquors, a purchaser of the presented to this court on an agreed statecar at the sale acquires all rights of the of-ment of facts, which admits on the part of fending party therein, whether as mortgagor, the claimant that the automobile was at the purchaser under conditional sale, lease, or what is termed a "Holmes note," subject to the time of the seizure being used in the unlawrights of an innocent claimant who appears ful transportation of intoxicating liquors, and establishes his lack of knowledge of or and on the part of the state that such use consent to the unlawful use; failing such claim, of the automobile was without the knowledge the interest of the offending person using such or consent of the claimant. vehicle will be presumed to be absolute.

The facts set forth in the agreed statement raise the issue for the first time before Agreed statement from Supreme Judicial this court as to the meaning and effect of Court, Somerset County, at Law. the act of 1917, chapter 294, authorizing the Proceeding by the State in municipal court | forfeiture of vehicles of all kinds, exceptto forfeit a Paige touring car engaged in ing common carriers, engaged in the transthe unlawful transportation of intoxicating portation of intoxicating liquors intended for liquors, in which the Jesse E. Knight Auto-illegal sale prior to its amendment by chapmobile Company appeared and filed claim. ter 63, P. L. 1921. Did the Legislature of The automobile was ordered forfeited to this state intend by the original act of 1917 the county and an appeal was taken by to authorize the absolute forfeiture of the claimant thereof to the Supreme Judicial offending vehicle, as a thing outside the proCourt, on an agreed statements of facts. Automobile forfeited to county subject to rights of claimant.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

tection of the law by reason of its unlawful use, regardless of the knowledge or consent of the owner, as in the case of vehicles and teams used in violating the Federal Revenue

Acts, or of automobiles under the Federal Act of March 2, 1917, for the Supression of the Traffic in Intoxicating Liquors among In

James H. Thorne, Co. Atty., of Madison, dians (United States v. Mincey, 254 Fed. 287, for the State. 165 C. C. A. 575, 5 A. L. R. 211; Commercial George W. Gower, of Showhegan, for Investment Trust Co. v. U. S. (C. C. A.) 261 claimant.

Fed. 330; White Automobile Co. v. Collins, 136 Ark. 81, 206 S. W. 748, 2 A. L. R. 1594), WILSON, J. August 7, 1920, the Jesse E. or did the Legislature, intend to protect inKnight Automobile Company and Narcisse nocent parties to the extent of their rights in Drouin entered into written agreement of such vehicles, as under the federal act origisale of an automobile, under which agree-nally prohibiting the introduction of liquors ment Drouin was to pay the Automobile into "Indian country" (U. S. Comp. St. § Company the sum of $300 in cash and there-4141), and the statutes of Alabama, Georgia, after monthly the sum of $75 for a period of North Carolina, and other states, authoriz11 months and a final payment at the end of ing the forfeiture of vehicles when used in one year of $675. All the future payments the illegal transportation of intoxicating were evidenced by the promissory notes of Drouin payable in accordance with the agree ment, and by the terms of the agreement were to be treated as rental, and upon their payment all rental for the use of the automobile by Drouin was to cease, and the automobile was then to become his property. The agreement of sale was duly recorded and the automobile delivered to Drouin.

liquors (Shawnee Nat. Bank v. United States, 249 Fed. 583, 161 C. C. A. 509; Maples et al. v. State [1919] 203 Ala. 153, 82 South. 183; Seignious v. Limehouse [1917] 107 S. C. 545, 93 S. E. 193; Whites v. State [1919] 23 Ga. App. 174, 98 S. E. 171; Skinner et al. v. Thomas [1916] 171 N. C. 98, 87 S. E. 976, L. R. A. 1916E, 338; One Hudson Super-Six Automobile, etc. v. State [1920] 77 Okl. 130, 187 Pac. 806)?

On September 8, 1920, the automobile, while being used by Drouin for the unlawful trans- Clearly the latter. While the first part of portation of intoxicating liquors, was seized the act is in as general and absolute terms on a warrant issued out of the Western Som- as either of the federal acts first referred erset municipal court under chapter 294, P. to or the Arkansas statute, it expressly pro

vides for the rights of any claimant being dev. One Lexington Automobile (1919) 203 Ala. termined, upon its being shown that such use was without his knowledge and consent.

Obviously the effect of such statutes must be either to forfeit the vehicle as an offending thing, without protection of the law, regardless of the want of knowledge of its unlawful use by its owner, or they must be construed as authorizing the forfeiture of only such rights as the person unlawfully using or consenting to its unlawful use may have in it, and exempting from forfeiture the interest of the innocent claimant.

506, 84 South. 297; One Hudson Super-Six Automobile, etc., v. State, supra; White v. State, supra; Seignious v. Limehouse, supra. In Bowling v. State and Seignious v. Limehouse the right of a mortgagor was forfeited and ordered sold subject to the mortgage, while in the case of One Packard Car (Denegre Car & Truck Co., Claimant) v. State, there was a conditional sale contract under which the claimant asked to intervene. The court allowed its contention, and remanded the case back to be determined by the ruling

above, the rights of the mortgagor were forfeited and sold subject to the rights of an innocent mortgagee. Also see U. S. v. One Automobile, supra.

Under such construction the rights of innocent parties are fully protected, and the rights of the guilty are forfeited, which we think accords with the legislative intent under chapter 294, P. L. 1917. The court, however, expresses no opinion as to the effect of the amendment of 1921 (P. L. c. 63).

It would also render such a statute prac-in Bowling v. State, in which case, as stated tically impotent to give it a construction under which a claimant, however small, having established his lack of knowledge of or consent to the unlawful use, could by the proof of his claim rescue also the interests of the guilty therein from the operation of the law. Otherwise an automobile worth several thousand dollars might be put to such unlawful use without fear of forfeiture by the owner placing a mortgage thereon to secure some small indebtedness, or, in case of purchase for use in such unlawful traffic under a lease or conditional sale agreement, by paying all but a small amount, obtain protection against forfeiture under this act so long as the seller could prove his want of knowledge of the unlawful use of such vehicle. We cannot presume that the Legislature, by throwing a shield of protection around the rights of the innocent party, intended that it might also be used to protect the rights of the guilty from forfeiture. While it is clear that the Legislature intended to protect the rights of innocent parties, it is equally clear that the real purpose of this act was to subject the property of the guilty to forfeiture.

Owing to the manner in which the case is brought before this court, not only must the rights of the claimant be determined, but the rights of Drouin must also be disposed of according to the views herein expressed. Entry will therefore be:

Rights of Narcisse Drouin in said Paige Touring Car on September 8, 1920, under the lease or agreement of sale with Jesse E. Knight Automobile Company, forfeited to the county of Somerset, to be sold in accordance with the provisions of chapter 294, P. L. 1917, subject, however, to the claim of the Jesse E. Knight Automobile Company under said agreement of sale.

WILLIAMS v. DUNN.

1921.)

(120 Me. 506)

And it matters not, we think, whether the rights of the offending party were those of a mortgagor, or a purchaser under a conditional sale, lease, or what is in this state termed a "Holmes note." Such as they were, they were liable to forfeiture and sale under (Supreme Judicial Court of Maine. Nov. 21, this act, subject of course to rights of the innocent claimant, provided he establishes his claim in court; the purchaser in case of sale acquiring the same rights, under any contract, mortgage, or lease, as the person whose interest was forfeited had therein. In case no claimant appears, the interest of the person unlawfully using such vehicle must under the act be presumed to be absolute.

The statutes of other states, while differing somewhat in terms from that of the act under consideration, have in many instances been so construed. U. S. v. One Automobile

1. Sheriffs and constables

121-Deputy held liable for failure to require bond of plaintiff in replevin.

Under Rev. St. c. 101, § 18, a deputy sheriff, failing to take a bond from plaintiff in replevin as required by statute, was without authority to take the property from defendant, and became thereby a trespasser, liable to defendant in action on the case. 2. Sheriffs and constables 139(2,5) Amount of liability of sheriff for failure to require security stated.

(D. C.) 237 Fed. 891; Bowling v. State session of the property as mortgagee, and if If plaintiff in replevin was entitled to pos(1920) 204 Ala. 405, 85 South. 500; One Pack- such title finally vested in him by foreclosure, ard Automobile (Denegre Car & Truck Co., defendant in replevin suffered no actual damCaimant) v. State (1919) 204 Ala. 435, 86 ages by the sheriff's failure to take bond, and South. 21; Spencer v. Thomas, supra; State the sheriff would be liable for only nominal

(115 A.)

to the defendant in the replevin suit, who is the plaintiff in this action, which the plaintiff in the replevin suit refused to do, claiming title to them under a foreclosed chattel mortgage.

damages; but if the plaintiff in replevin was not entitled to possession under the mortgage, then the defendant's damages in such action are the actual damages recoverable by him against the plaintiff in replevin in action on statutory bond, in case one had been taken. 3. Payment 30-Contract held agreement to pay in commodity or cash at option of prom-Williams, to furnish him with 30 tons of isor..

Where the vendor of an agreed number of pounds of fertilizer at an agreed price took from the seller his note for a sum stated, payable in stated number of barrels of potatoes on a certain date, to secure which the seller executed a chattel mortgage on all the potatoes he might grow, the agreement was to pay in the commodity named, or in cash at the option of the promisor.

4. Chattel mortgages 112-Not enforceable where mortgagee seller breached contract.

In the spring of 1919 one Sylvester entered into an agreement with the plaintiff,

his farm during the season of 1919, and potato fertilizer at $84.25 per ton for use on took from the plaintiff his note for the sum of $2,527.50, payable in 1,263 barrels of potatoes on December 1, 1919, to secure the payment of which the plaintiff executed a chattel mortgage to Sylvester of all the potatoes grown on his homestead farm during that season.

At the close of the planting season the plaintiff notified Sylvester that he had not received all the fertilizer due him under the agreement, and after some inquiries and in

Chattel mortgage, given by purchaser of fertilizer to secure payment, was not enforceable, where the mortgagee seller breached the contract by failure to deliver the requisite ton-vestigation by Sylvester with a view to de

gagor restores right to possession. Under Rev. St. c. 96, § 3, tender of performance by mortgagor of chattel ipso facto puts an end to the interest of the mortgagee, and restores sole right of possession to the mortgagor.

6. Sheriffs and constables 139 (5) .Extent of recovery on deputy's bond for failure to take security stated.

Where a vendor of fertilizer was to receive 1,263 barrels of potatoes in payment, to secure which he took a mortgage on the buyer's crop of potatoes, and which in seeking to enforce he replevined the stated number of barrels in the buyer's possession, and the officer failed to take a replevin bond, and the buyer's mortgage and agreement were not enforceable because he had failed to deliver the requisite tonnage, the actual loss suffered by the buyer from the officer's neglect was the value of the 1,263 barrels, less the value of the fertilizer delivered.

termining the amount actually delivered, the plaintiff, upon Sylvester refusing to deliver any more, notified him that he should not and before the note was due offered to pay deliver the potatoes in payment of the note, for the fertilizer actually delivered, which was refused by Sylvester.

On the 1st day of December, 1919, when the note became due, Sylvester placed a replevin writ in the hands of one of the defendant's deputies, directing him to replevy thereon 1,263 barrels of potatoes then in the hands of the plaintiff, Williams, and being the amount due Sylvester under the terms of the note and part of those covered by the chattel mortgage. The deputy sheriff, however, before service of the writ, through an oversight, failed to take the bond required by section 10, c. 101, R. S., from Sylvester, the plaintiff in the replevin suit, and also failed to properly serve the writ, by reason of which lack of service the writ was dismissed upon motion of Williams, the deReport from Supreme Judicial Court, fendant in that action, and return and restiAroostook County, at Law. tution of the chattels was ordered by the court.

Action by John L. Williams against Charles E. Dunn. Case reported. Judgment for plaintiff.

Argued before CORNISH, C. J.,

and SPEAR, PHILBROOK, WILSON, and DEASY, JJ.

Powers & Guild, of Ft. Fairfield, and Howard Pierce, of Mars Hill, for plaintiff. Archibalds, of Houlton, for defendant.

In February, 1920, foreclosure proceedings on the chattel mortgage given by the plaintiff, Williams, were begun by Sylvester, but as we now view the case, it in no way affected the rights of the parties in this action.

[1] It is clear that the deputy sheriff, upon failing to take a bond as required by statute, was without authority to take the property then in the possession of Williams on the WILSON, J. An action on the case replevin writ, and became thereby a tresagainst the defendant as Sheriff of Aroos-passer, and also liable to him in damages in took county for damages resulting from fail- this action. Tuck v. Moses, 54 Me. 115; ure of one of his deputies to take a bond Parker v. Hall, 55 Me. 362; R. S. chap. 101, from the plaintiff in a replevin suit, which sec. 18.

was dismissed for want of proper service, [2] If Sylvester was entitled to possession and the chattels replevied ordered returned as mortgagee, and the title finally vested in