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this item, “Due from Arthur Stanley, culvert, $50.” That showed that Mr. Stanley was a debtor to the town in that amount, and was properly included among the assets. No suit for libel could be maintained on that charge, and none was attempted. That Was a privileged communication. [8] When, however, the Selectmen went further and in another part of their report published the libelous charge of “Arthur Stanley larceny, culvert, $50,” they transcended their duty, stepped outside the protection of privileged communication, and became amenable to the law. The privilege is only commensurate with the duty. It was their duty to publish the fact of the indebtedness from the plaintiff among the resources of the town. This they did in another place, as we have Seen, but they far exceeded their duty when they made an independent entry and charged him with the crime of larceny. It would seem that they sought to avail themselves of the occasion merely as a means of bringing the plaintiff into public disgrace. Under such circumstances the occasion furnishes no justification. Shaw, C. J., in Bradley v. Heath, 12 Pick. (Mass.) 163, 165, 22 Am. Dec. 418. The defense of privileged communication Cannot avail. [9] 3. This leaves only the question of damages to be considered by the court. The verdict is for $1,500, and the defendants argue that this is grossly excessive. We cannot so view it. [10] The plaintiff was a reputable citizen, holding an important position with the Old Colony Woolen Mills Company. The defendants by virtue of their official position also were men of influence, whose words carried weight. These town reports were distributed among the Voters Of the town, and copies must be deposited in the Office of the Selectmen or clerk (R. S. c. 4, § 45), there to remain as a part of the archives of the town. Moreover, under R. S. c. 3, § 15, such reports are required to be filed in the state library, there to remain as a part Of the archives of the state. Printed defamation is more potent than spoken, because more permanent. It endures. A Criminal charge made under Such circumstances is therefore a most serious matter. Moreover, the attitude of the municipal of. ficers from the beginning seems not to have been that of officials endeavoring with fairness and justice to perform their public duties, but rather that of partisans having some grudge to gratify either toward this plaintiff or Mr. Coburn. There is strong inferential evidence of actual malice, malice in fact. The speedy notification for settlement or arrest, the arrest and trial that followed with no delay, the claim of $50 for a metal culvert costing and Worth about $20, the Service

of the civil writ therefor by arrest, instead of the usual course by summons when So far as appears there was no pecuniary necessity therefor, the setting up of the truth in the pleadings by way of justification (Oavis V. Starrett, 97 Me. 577, 55 Atl. 516), and the adherence to the same in argument, even after the Supreme Judicial Court had discharged the plaintiff from arrest under this same charge, all this reveals a persistent purpose on the part of the defendants to harass and humiliate the plaintiff with respect to a matter which in itself and as among broad-minded business men would be regarded as trivial.

[11] It was a case, therefore, in which punitive damages might well be awarded if the jury saw fit to grant them.

In view of all the facts, we cannot say that the amount of the verdict is manifestly excessive.

The entry will be:

Motion overruled.

Judgment on the verdict.

(118 Me. 378)

BRYER. v. WYMAN. (Supreme Judicial Court of Maine. Dec. 4, 1919.)

CORPORATIONS 3-181(8)—RIGHT OF STOCKHOLDER TO HAVE ACCESS TO BOOKS OF RESIDENT COMPANY. Under Rev. St. c. 51, § 22, a stockholder in a resident corporation doing business in Maine, and having a treasurer's office at some fixed place in the state where a stockbook is kept, giving the name, residence, and amount of stock of each stockholder, is entitled to compel the company to open its books to inspection, to enable him to take copies and minutes therefrom, not being actuated by any vexatious, improper, or unlawful motive, though a resident corporation is exempted from the requirement, applicable only to nonresident corporations, that special books be kept at some fixed place, showing a complete list of all stockholders, since it already has a fixed place, where all its books are kept.

Exceptions from Supreme Judicial Court, Androscoggin County, at Law.

Petition for mandamus by Joseph G. Bryer against Walter S. Wyman, trustee. Writ granted, and defendant excepts. Exceptions Overruled.


Joseph G. Bryer and Ralph W. Crockett, both of Iewiston, for petitioner.

Harvey D. Eaton, of Waterville, for defendant.

6:5For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

SPEAR, J. This is a petition for mandamus by a stockholder to compel the defendant company to open its books to inspection to enable the petitioner to “take copies and minutes therefrom,” as provided in R. S. c. 51, § 22. The defendant contends that this statute does not apply to a corporation doing business in this state and “having a treasurer's Office at Some fixed place in the state, where a stockbook is kept, giving the names. residence, and amount of stock of each Stockholder.” It is claimed that this language is so clear as not to admit of interpretation, and we Concede the claim. It is also equally clear that this provision was made solely for the purpose of differentiating between nonresident and resident corporations. The nonresident is required to keep books at some fixed place, showing “a complete list of all stockholders.” The only exemption of the resident Corporation is that the “provision as to the list of stockholders” shall not apply, as it already has a fixed place where all its books are kept. Moreover, every reason that can be urged for the first part of the Section regarding the right to examine the books of a nonresident corporation is equally cogent with respect to the books of a nonresident corporation. The language is clear and the meaning plain. The rights of a stockholder under the above chapter and section have been fully considered and construed in White v. Manter, 109 Me. 408, 84 Atl. 890, 42 L. R. A. (N. S.) 332, Withington v. Bradley, 111 Me. 384, 89 Atl. 201, Eaton v. Manter, 114 Me. 259, 95 Atl. 948, and Knox v. Coburn, 117 Me. 409, 104 Atl. 789. Upon the question of fact the presiding justice found as follows:

“It is sufficient to say that the facts presented fail to show any vexatious, improper or unlawful purpose on the part of the petitioner, or on the part of his client, Mr. Shea, for whom he is acting in this matter.”

The case is entirely within the decision in Knox v. Coburn, supra. o

A careful reading of the evidence reveals no error in the finding of facts.

Exceptions overruled.

(118 Me. 399) ARNOLD v. CITY OF AUGUSTA.

(Supreme Judicial Court of Maine. Dec. 15,


1. TAxATIon &=730–AssumPTION of RISK BY PURCHLASER AT TAX SALE. At common law the purchaser at a tax sale assumes the risk of his purchase, the power of an officer to sell being naked, purely statutory,

and not coupled with an interest, so that the purchaser is bound to inquire whether it is rightly exercised, and comes in the absence of special legislation within the rule of caveat emptor, and cannot recover the price from the municipality if his title proves worthless.

2. MUNICIPAL coRPoRATIONS 6-980(9)—REFUND ON INVALID TAX SALE NOT AUTHORIZED. The Legislature has provided no statute requiring a refund of money paid for a tax deed based on defective proceedings in assessing the tax, nor is there any statutory authority in Maine for bringing action against the municipality to compel such refund.

On Motion and Exceptions from Supreme

-Judicial Court, Kennebec County, at Law.

Action by Greenwood C. Arnold against the City of Augusta, resulting in verdict for plaintiff. On defendant’s motion to set aside the Verdict as against law, and on his exceptions. Exceptions not considered; motion Sustained.

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

William H. Fisher, Of Augusta, for plaintiff.

Melvin E. Sawtelle, of Augusta, for defendant.

PHILBROOK, J. Previous to the year 1912 a real estate tax was assessed, by the proper officers of the defendant city, upon a certain piece of land within its borders. In March of that year, the tax remaining unpaid, the plaintiff interviewed the city treasurer to ascertain whether the municipality would sell the land to him, and give him what is commonly known as a tax deed. As a result of that interview the city council, on May 20, 1912, voted “that the city treasurer be authorized and directed, upon payment to him for the use of the city a sum of not less than $200, to execute on behalf of the city a quitclaim of all its right, title, and interest in and to” the land in question. On May 27, 1912, such conveyance was made and executed in behalf of the city by its then existing treasurer. The plaintiff paid $200 to the city treasurer, and in due time received the tax deed. Subsequently it appeared that there were irregularities in the assessment of the taxes Of Such a nature that the assessment was void, and hence the city had no authority to sell the land for the purpose of enforcing the collection of the assessed tax. The plaintiff then brought this action against the city for money had and received, and obtained a favorable verdict from a jury. The defendant presents a motion for a new trial and exceptions to certain rulings of the learned justice in the court below. The fundamental Question is whether the plaintiff can maintain this action.

[1] In many states provision by statute has

6-or'or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(108 A.)

been made so that the purchase money paid at a tax sale shall be refunded to the purchaser if the title conveyed proves to be inValid, and a right Of action against the municipality is provided if the refund is refused, but at Common law the purchaser at a tax sale assumes the risks of his purchase. MoreOver, the power of an Officer to sell is a naked power, statutory, and not coupled with an interest, and the purchaser is bound to inquire whether it is rightly exercised. Therefore, in the absence of special legislation to the contrary, he comes within the rule of caveat emptOr, and if his title proves worthless he Cannot recover the money from the municipality.

These principles have become so firmly established by the decisions of various courts that there is no longer left any doubt as to the fixed law upon the subject. “It is a firmly settled general rule that a purchaser at a tax sale buys at his own risk, and that, if the sale proves ineffectual, he cannot, in the absence of an express statute, recover from the county the money paid by him. The payment is regarded as a voluntary one, and he asSumes all risks; for, as in judicial sales, there is no warranty in tax Sales. Where an action is brought to recover money paid on the purchase of property at a sale, the party asking that it be refunded must show a statute providing that it shall be paid back to him.” State v. Casteel, 110 Ind. 174, 11 N. E. 219, citing various cases.

In City of Logansport v. Humphrey, 84 Ind. 467, it was said:

“The general rule is beyond dispute that the purchaser at a tax sale assumes all risk, and except as he may be vested by force of statutory provision with a lien which the city or municipality held against the property of the delinquent tax debtor, he is without remedy if he fails to obtain a good title under his purchase. The doctrine of caveat emptor applies to such sales in its fullest force.”

The Nebraska court, in Martin W. Kearney County, 62 Neb. 538, 87 N. W. 351, holds that the rule of caveat emptor applies to purchasers of real estate at tax sales, and, quoting from McCague v. City of Omaha, 58 Neb. 37, 78 N. W. 463, says:

“He [the purchaser] was not required to either pay the special taxes against the lots in question nor to purchase the property at tax sale. He voluntarily purchased the lots for the amount of the illegal taxes imposed thereon, and he has no one but himself to blame for the loss. He cannot recover the amount back.”

A leading case is that of Pennock v. Douglas County, 39 Neb. 293, 58 N. W. 117, 27 L. R. A. 121, made the subject of an extensive note in 42 Am. St. Rep. 579, where the authorities upon this subject are collected and discussed with much clearness and conclusiveness. The annotator, from a review of the cases, says:

ejected by the owner.

“There seems to be no common-law liability of either town, city, county, or state for money received at a void tax sale, and therefore no obligation to refund it. * * * The purchaser at a tax sale, buying, as he does, property from a person who is not the owner of it, comes ‘strictly and rigidly,’ within the rule of caveat emptor; and, if his title fails, he cannot, except by virtue of some statutory provision, recover either the amount paid upon his purchase or damages for the illegal sale after he has been And the maxim applies to all tax sales, whether made for the benefit of a town, city, county, or state.”

Our Own Court appears to have given Sanction to this doctrine in at least two early CaseS.

In Treat W. Orono, 26 Me. 217, when discussing the right to recover consideration paid for a tax deed, the court said:

“To allow a person to purchase at such a sale, as he often may, a valuable estate for a trifling sum, and to take a deed from the collector without covenants of title, and to become the absolute owner of the estate, if the title thus acquired should prove to be good, and, if not good, to recover back the consideration paid, with interest, and thus to derive all possible advantage from the contingency, without being subjected in any event to a loss, would present a case anomalous as a business transaction, showing that it could not have been the intention of the parties.”

In Packard v. New Limerick, 34 Me. 266. Chief Justice Shepley, speaking for the court, SayS:

“When the purchaser acquires a good title, he is compensated for his risk by being allowed at the rate of 20 per cent. for the use of his money, if the lands are redeemed, and, if they are not, by becoming the owner of the lands, usually for a small part of their value. When the title does not prove to be good, he may be subjected to a loss of the amount paid for it. The town assumes no part of the risk, and does not become responsible for the goodness of the title conveyed to the purchaser, who must rely upon the covenants contained in the deed of the collector. The lands sold not being the property of the town, it can derive no benefit from a failure of the title of the purchaser. If required to compensate the purchaser for his loss of title, it would lose the amount of the taxes assessed upon the lands, and the risk respecting the title would be shifted from the purchaser, who had been paid for assuming it, to the town, which might be subjected to numerous suits, and be unable to know the actual condition of its financial concerns.”

[2] Our Legislature has provided no statute requirinig a refund of money paid for a tax deed, based on defective proceedings in assessing a tax, nor is there any statutory authority in this state for bringing an action against a municipality to compel such refund. The motion to set aside the verdict, as against law, must be sustained, but the exceptions need no consideration.

Exceptions not considered.

Motion sustained.

(118 Me. 403) M. STEINERT & SONS CO. v. REED.

(Supreme Judicial Court of Maine. Dec. 19,

1. SALEs 6-477 (4)—SUIT on NoTE NOT A WAIVER OF RIGHT TO PROPERTY CONDITIONALLY SOLD. Where note given for piano provided that title should not vest in maker until note was paid in full, the seller by bringing suit on the note and recovering judgment and execution, but not satisfaction, did not waive the right to or lien on the piano.


The right of seller under conditional sales contract is that of a mortgagee under a chattel mortgage given as security for a debt, and he may attempt the collection of the debt by suit, and also by enforcing his security, concurrently or successively.

3. CHATTEL. MoRTGAGES @-136—WAIVER OF LIEN BY ATTACHMENT. An attachment of mortgaged chattels, in a suit to enforce the mortgage debt, is a waiver of the lien.

Agreed Statement from Supreme Judicial Court, Washington County, at LaW.

Action by the M. Steinert & Sons Company against Henry E. Reed, brought to the Supreme Judicial Court on an agreed statement of facts. Judgment for plaintiff.


Howard M. Cook, of Bangor, and Harold H. Murchie, of Calais, for plaintiff. R. J. McGarrigle, of Calais, for defendant.

DEASY, J. The case comes to this court on agreed statement.

Defendant received a piano from the plaintiff and gave for it a note payable in installmentS.

[1] The note contained an agreement that it was given for rental of the piano which “is to remain the property of the Said M. Steinert & Sons Company until this note is paid in full at which time the title to said instrument is to vest in the maker of this note.”

The plaintiff brought Suit on note, recovered judgment and execution, but not satisfaction. Then the plaintiff replevied the piano.

The defendant claims that by its unsuccessful attempt to collect the note of the maker the plaintiff waived its right to or lien on the property. He Sets up no other defence.

[2] While there is some conflict of authority in other jurisdictions, it is settled law in this state that—

“Practically * * * the right of the vendor is that, and only that, of a mortgagee of personal property under a chattel mortgage given as security for a debt. He can attempt the collection of his debt by suit and also by enforcing his mortgage security concurrently or successively.” Westinghouse v. R. R. Co., 106 Me. 349, 76 Atl. 897; Arthur E. Guth Co. v. Adams, 114 Me. 390, 96 Atl. 722.

[3] An attachment of mortgaged chattels in a Suit to enforce the mortgage debt is a waiver of the lien. Libby v. Cushman, 29 Me. 429; Whitney v. Farrar, 51 Me. 418.

But in this case no attachment appears to have been made.

Judgment for plaintiff.

By stipulation damages to be assessed at One dollar.

(93 Vt. 383) MOORE v. GRAND TRUNK RY. CO. (No. 156.)

(Supreme Court of Vermont. Oct. 7, 1919.)


In an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657–8665) for injuries sustained by plaintiff while coaling defendant's locomotive at a divisional point where all incoming and outgoing trains were interstate or international, whether plaintiff and locomotive were engaging in an act so closely related to interstate or international commerce as to be practically a part thereof held for the jury.

2. MASTER AND SERVANT ©185(2)—RAILROAD LIABLE FOR WRONG FUL ACTS OF SERVANT. If in placing locomotive to be coaled defendant's servant in charge negligently left the lever away from the center, the throttle open, or the brake in such a way that the locomotive could and did start, his wrongful acts were in the performance of the duties of his employment, and defendant, under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657–8665), is responsible for resulting injuries.

3. MASTER AND SERVANT 3-265(6)—INJURY DUE TO STARTING OF LOCOMOTIVE; RES IPSA LOQUITUR. In an action under the federal Employers’ Liability Act (U. S. Comp. St. §§ 8657–8665) for injuries sustained by plaintiff servant while coaling defendant's locomotive due to locomotive starting while he was reaching for coal chute, held, that the principle of res ipsa loquitur was applicable.


In an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657–8665) for injuries sustained by plaintiff servant while coaling defendant's locomotive due to locomotive starting while he was reaching for coal chute, held, plaintiff was entitled to have submitted to the jury the question of future damageS.

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

(108 A.)

Exceptions from Essex County Court; Leighton P. Slack, Superior Judge.

Action by William G. Moore against the Grand Trunk Railway Company. Verdict and judgment for plaintiff, and defendant exCepts. Judgment affirmed.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, J.J., and FISH, Superior Judge.

Amey & Cameron, of Island Pond, and Porter, Witters & Harvey, of St. Johnsbury, for plaintiff.

John W. Redmond, of Newport, for defendant.

WATSON, C. J. This action, brought under the federal Employers' Liability Act of 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657–8665]), is for personal injuries suffered by the plaintiff at Island Pond, this state, on July 13, 1917, while engaged in coaling defendant's locomotive, No. 1018 (hereinafter referred to by number). The defendant is a common carrier by railroad, engaged in commerce between several states, and between states and a foreign nation. Thirty-two miles of its road are in Vermont, passing through the village of Island Pond, which is a divisional point. Seventeen miles west of Island Pond the road passes into Canada, continuing to Montreal and beyond. The village of Norton Mills is on this line at the Canadian border, but in Vermont. Fifteen miles east of Island Pond the road passes into the state of New Hampshire and on to Portland, Me. All trains coming into Island Pond from either direction Stop at that place; and every engine coming in hauling a train finishes its trip there, is detached from the train, and taken to the Coal shed to be coaled. After the coaling is done, the engine is run to the ash pit, where the fire is either cleaned or dumped, as may be required. It is then taken to the turntable, turned, and placed in the roundhouse. When fired up and filled with water, it is ready for further serviceable action.

The declaration contains several counts; but it appears from the record that the negligence of which the plaintift complained, and on which he relied for a recovery, was either that the engine was negligently started by the man (Earl Norris) in charge, or was by him negligently left in such a way that it started by its own action. In considering the questions presented for review, we Observe these limits.

At the Close of the evidence, defendant moved for a directed verdict on the grounds that on the evidence, taken in its most favorable light to the plaintiff: (1) Defendant was not guilty of actionable negligence; (2) the starting of the engine by Norris was not

an operation in the line of his duty, and, if in the circumstances he started it, such act must have been for a purpose personal to himself or actuated by his own caprice; and (3) neither the defendant nor the plaintiff, at the time of the transaction wherein the latter was injured, was engaged in interState commerce or in an act so closely related thereto as to be a part of it. On the exception saved to the overruling of this motion rest the real contentions before us. On the day of the accident, at 5 o'clock in the afternoon, 1018 arrived at Island Pond, hauling freight train No. 554, from Richmond, Canada, and, as usual, was detached from the train and left by the engineer near the coal chutes, to be coaled. The plaintiff was then employed by defendant in the coal shed, doing all kinds of work toward unloading coal and coaling engines. He had been employed doing such work at that place the biggest part of the time for a large number of years. After the arrival of 1018, Norris, who was employed by defendant as a “fire dumper,” and had been so employed between two and three months, asked the plaintiff to coal it as soon as he could, and get it up to the ash pit, so Norris could get home for supper by 6 o'clock. Thereupon the two got onto the engine, and Norris moved it to the right place to receive coal, stopping it there. The engine being thus placed, the plaintiff, standing on the tender, Was attempting to pull down the chute through which coal would be delivered into the tender, when he received the injuries complained Of. This engine was ordered for freight train No. 551, which left Island Pond at 6 o'clock the next morning, and went with that train to Richmond. There was no direct evidence showing whether this order was general, cowering some length of time, or Special, for that trip only; nor that it was issued before the accident; nor that the injury was suffered by the plaintiff when engaged in coaling the engine for that run. But the undisputed evidence showed that On all week days (the trains did not run Sundays) during the entire month of July this engine was making that same run, that is, it went from Island Pond to Richmond one day and returned from Richmond to Island Pond the next day, except on July 3d another engine was used to haul that train; that 1018 was used for no other purpose during that month; that it was on that run for the year 1917, except there might have been One or two trips when another engine was substituted. It further appeared that on March 11th this engine arrived from Richmond at 5:45 a.m., was used in switching service later in the day, and left with a special freight train for Richmond at 5 p. m. ; that On January 28th (which by common knowledge was Sunday) it was Ordered for a Work train to Norton Mills at 8 a. m., doing Work on defendant's

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