Whitney v. Lowell
Supreme Judicial Court of Maine
Exceptions from the District Court, Hathaway, J. Trover for a mare. The plaintiff claims under a mortgage made to him by one Garland to secure a note payable Dec. 1, 1847, which is yet unpaid. The mare was left in possession of Garland, and there was evidence, tending to show that by agreement Garland was to keep the possession until the pay-day of the note should arrive.
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Exceptions from the District Court, Hathaway, J. Trover for a mare. The plaintiff claims under a mortgage made to him by one Garland to secure a note payable Dec. 1, 1847, which is yet unpaid. The mare was left in possession of Garland, and there was evidence, tending to show that by agreement Garland was to keep the possession until the pay-day of the note should arrive. Prior to the pay-day, Garland sold the mare unconditionally to the defendant, and in November or December, 1847, the defendant offered to sell her to Bennett, who then took her and kept her for several months on trial. The…
1Opinion of the Court
Wells, J., orally.
The instrument was a mortgage in the regular and usual form. Parol evidence was offered, to show that it was designed to be merely a pledge, and thereby control the written contract. Such evidence was clearly inadmissible.
The unconditional sale by Garland, though prior to the payday of the note, was a violation of the trust reposed in him *320by the plaintiff ; and gave to the plaintiff an instant right to reclaim the possession.
The instruction was that the sale or offer to sell by the defendant was evidence of a conversion. That fact when taken in connection with the proof of…
2Cited by4 opinions
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- Shorter v. DailCourt of Appeals of Maryland · 1913
- First National Bank v. SorensonWyoming Supreme Court · 1923
- Ferguson v. CliffordSupreme Court of New Hampshire · 1858