(94 Me. 452) GETCHELL v. BIDDEFORD SAV. BANK (two cases).

(Supreme Judicial Court of Maine. Dec. 18, 1900.)

GIFT-DELIVERY-HUSBAND AND WIFE

TRUST-PRESUMPTION-PRACTICE.

1. To effectuate a gift there must be a delivery to the donee, or an express declaration of trust in his favor.

2. Where a husband delivers to his wife the property itself, or the evidences of title thereto, the relationship may raise a presumption that the transaction was a gift, but where there is no such delivery there is no such presumption.

3. Where a husband deposits his own money in a savings bank in his wife's name, without delivering to her the bank book or expressly declaring a trust in her favor, the money so deposited does not vest in the wife.

4. Where a husband with his own money buys corporate stock, and has the certificates made out in his wife's name, and holds them without delivering them to her or expressly declaring a trust in her favor, the stock so purchased does not vest in the wife.

5. The elimination by counsel of formal and irrelevant matters from the case sent to the law court is commended.

(Official.)

Report from supreme judicial court, York county, in equity.

Action by Edward F. Getchell, administrator, against the Biddeford Savings Bank, and suit by the same plaintiff against the same defendant. Cases reported. Bill dismissed. Judgment for defendant in action at law.

The first case was an action of assumpsit for money had and received. The issue presented by the pleadings was the ownership of a deposit in the Biddeford Savings Bank of $1,151.87, and interest from October, 1889, which then stood in the name of Martha M. Moore.

The second case was a bill in equity, heard on bill, answer, and proof, to determine the ownership of five shares of the stock of the Biddeford National Bank at the time of the death of Martha M. Moore, in September, 1889.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

H. Fairfield and L. R. Moore, for plaintiff. Edwin Stone, for defendant.

EMERY, J. These cases come before the law court upon report with a brief but comprehensive record, from which all mere formal and irrelevant matters have been eliminated. By making up such a record, counsel have saved their clients expense and costs, and have presented the case more clearly, without in the least endangering any right. Such a course is commended.

The competent evidence leads us to believe the following to be the material facts: Mr. Moore, in the lifetime of his wife, purchased five shares in the Biddeford National Bank, which he paid for with his own mon

ey.

The certificates, however, were at his request made out in the name of his wife. These certificates he kept in his own files in the bank vault, and he drew the dividends, receipting for them in his own name. It does not appear that his wife ever had the certificates or ever knew that the shares were in her name. After her death Mr. Moore surrendered the certificates to the bank, and induced the bank officers to issue new certificates in his own name.

Also, in his wife's lifetime, Mr. Moore deposited a sum of his own money in her name in the York County Savings Bank, takLater ing out a deposit book in her name. he withdrew this deposit from that bank and deposited it in the Biddeford Savings Bank, and again taking out a deposit book in her This book was kept at the bank, Mr. Moore being one of its officers. It does not appear that either deposit book was ever seen by Mrs. Moore, or that she ever knew of either deposit. Shortly after her death, Mr. Moore induced the bank to pay to him the entire deposit.

name.

Mr. Moore did not make to either bank or to his wife any statement of his purpose in either of these transactions. So far as appears, he had the stock and money put in his wife's name merely for his own convenience, or to become her property in case she should survive him, but otherwise to remain his property.

Mr. Moore, however, survived his wife some eight years. After his death her heirs procured the appointment of the plaintiff as administrator upon her estate. The plaintiff thereupon brought a bill in equity against the national bank to compel it to issue to him, as such administrator, certificates for the five shares of its stock. He also brought an action at law against the savings bank to recover the amount of the deposit standing in her name at her death.

We have no occasion to consider what would have been Mrs. Moore's right in this property after the death of her husband had she survived him, for she did not survive him. Nor is it the question whether the transactions above recited operated to vest in Mrs. Moore, in her lifetime, the strict legal title to the property. That might be, and yet the actual beneficial ownership remain all the time in Mr. Moore. In such case she would simply have held that legal title in trust for him, and the court could compel her administrator to transfer it to the administrator of Mr. Moore's estate. Gray v. Jordan, 87 Me. 140, 32 Atl. 793. The only question is whether the actual, beneficial ownership was transferred to Mrs. Moore; for, if it was not, her administrator cannot maintain a suit against either bank for yielding up the property to the actual beneficial own

er.

That such ownership was not transferred to Mrs. Moore must be apparent. There was no gift completed by delivery, nor was there

any complete declaration of trust in her favor, one or the other of which was essential to vest the property in her. Robinson v. Ring, 72 Me. 140; Northrop v. Hale, 73 Me. 66-71; Bank v. Merriam, 88 Me. 146, 33 Atl. 840.

The plaintiff urges that, as between husband and wife, it should be presumed that a gift was intended. That relationship is a circumstance, but not a controlling one. Even if a gift was intended, it was not perfected. Bank v. Fogg, 83 Me. 374, 22 Atl. 251. Bill in equity dismissed, with costs. Judgment for the defendant in the action at law.

(94 Me. 395)

HESLAN v. BERGERON. (Supreme Judicial Court of Maine. Dec. 3, 1900.)

BILLS AND NOTES-PAYABLE AT BANK-DE-
MAND-CONSIDERATION-EVI-
DENCE-WITNESS.

1. By the statutes of Maine (Rev. St. c. 32, 10) it is provided that in an action on a promissory note payable at a place certain, either on demand, or on demand at or after a time specified therein, the plaintiff shall not recover unless he proves a demand made at the place of payment prior to the commencement of the suit.

2. In an action to recover upon promissory notes payable at a bank, but not on demand or on demand after date, it appeared that they were not presented at the bank before suit brought. Held, that it was not necessary to do

So.

3. The maker of promissory notes is an incompetent witness, in an action by the indorsee against the maker, to prove their illegal inception, until notice of such illegality is brought home to the plaintiff.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

Action by John E. Heslan against Joseph Bergeron.

Assumpsit by an indorsee against the maker of promissory notes.

The plaintiff claimed, and offered evidence tending to show, that the notes were indorsed and sold to him before maturity, for a valuable consideration, and without notice of any illegality in the contract. No evidence appeared in the case that the notes, or any of them, were ever presented at the First National Bank of Lewiston for payment,-the place specified thereon as the place of payment. The court, against the seasonable obJection of the defendant, ruled that presentation at said First National Bank for payment was not a condition precedent to recovery thereon.

The defendant, the maker of said notes, offered himself as a witness to prove that the consideration for the notes was the price of intoxicating liquors bought by the defendant of the payee in Boston, and intended for unlawful sale within the state of Maine. The presiding justice excluded his evidence upon this point. The defendant excepted to both of these rulings. Overruled.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, and FOGLER, JJ.

D. J. McGillicuddy and F. A. Morey, for plaintiff. M. L. Lizotte, for defendant.

STROUT, J. The notes in suit were payable at the First National Bank in Lewiston, They were not presented at that bank before suit brought. It was not necessary to do so. If the maker was ready to pay then on presentation at the bank, that could be shown in defense. Stowe v. Colburn, 30 Me. 32.

This action is by the indorsee against the maker. The ruling that the maker of the notes was an incompetent witness to prove their illegal inception, until notice of such illegality was brought home to the plaintiff, was correct. Baxter v. Ellis, 57 Me. 178 The rule is different when the action is be tween the original parties to the note. Smith v. McGlinchy, 77 Me. 153. Exceptions overruled.

(94 Me. 379)

DAVIES V. EASTERN STEAMBOAT CO. (Supreme Judicial Court of Maine. Nov. 26,

1900.)

COMMON CARRIER-AGENT-TELEGRAM—SHIP

PING.

1. The court will not infer, as matter of law, the authority of the captain of a passenger steamer to charge the owner with the duty of delivering telegrams addressed to its passengers.

2. Such authority is a question of fact, to be established by evidence.

3. In the absence of any evidence tending to prove that it is a part of the business habit or custom of the defendant, a common carrier of passengers by water, to receive telegrams for delivery to its passengers, or that it knew or permitted this to be done by its officers, servants, or agents, the defendant is not liable for the nondelivery of a telegram addressed to a passenger on board its steamer, and by direction of the captain accepted by the purser for delivery.

(Official.)

Exceptions from superior court, Kennebec county.

Action on the case by Oscar C. S. Davies against the Eastern Steamboat Company, as a common carrier of passengers, for damages arising from the nondelivery of a telegram. The case was tried to a jury, who returned a verdict for the defendant, and the plaintiff took exceptions to the ruling of the presiding justice. Overruled.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

Joseph Williamson, Jr., and L. A. Burleigh, for plaintiff. John Scott, for defendant.

POWERS, J. This is an action against a common carrier of passengers by water to recover damages resulting from the nondelivery of a telegraphic message directed to

distinct, and the latter is in no proper and legal sense incidental to or connected with the former. Common carriers of passengers make no charge for such a service, and its very responsible duties and burdens should not be imposed upon them without their consent unless some rule of public policy requires it.

The defendant sets up that in directing the telegram to be delivered to the purser the captain acted in excess of his authority, and outside of the scope of his employment and of the business in which he was engaged, and that therefore the defendant itself never received the telegram or became charged with the duty of its delivery.

The nature and scope of the defendant's business, whether the particular act was necessary for its successful prosecution, the usual and ordinary course of its management by those engaged in it at the time and place where it was carried on, were questions of fact for the jury, to be determined from all the circumstances of the case; and from them it was for the jury to say whether the act in question was within the authority of the agent, or the scope of the business of the principal which he was employed to transact. The court cannot infer, as matter of law, the authority of the captain of a passenger steamboat to charge the owners with the duty of delivering telegrams to its passengers. It is a matter of fact, to be established by evidence and found by the jury. The exceptions fail to show that any evidence was offered in this case which would warrant such a finding.

The defendant was a common carrier of

passengers by water. Its contract resulting from the relation of carrier and passenger, nothing else appearing, was to transport its passenger safely and with proper regard for his comfort and convenience, together with such articles and money as might be properly contained in the baggage which he brought with him. The exceptions show no express contract with the passenger for more than this, and nothing from which more can be implied. They utterly fail to show that it was any part of the defendant's business, habit, or custom to accept telegrams for de livery to its passengers, or that it knew o" permitted this to be done by its officers, servants, or agents. In general, the business of common carriers of passengers on our inland waters, and that of receiving and delivering telegrams, are entirely separate and

47 A.--57

We cannot infer that it is necessary for the safety, comfort, or even convenience of the passenger that the duty of the delivery

gratuitously imposed upon the passenger carrier. The telegraph company to whom the message has been intrusted is engaged in that business, and has the equipment and servants specially trained for carrying it on. For an adequate consideration it has entered into an express contract to deliver the message, and usually knows its contents, importance, and urgency. In discharging that duty it may select its own means and agents, and is responsible for any neglect on their part. The defendant therefore owed no con tractual duty to its passenger to receive and deliver the telegram. It does not appear that it was a part of its business or incidental thereto. If not, it necessarily follows, nothing else appearing in the case, that the act of the captain of the defendant's steamboat was outside of the scope of the business in which he was engaged, and not connected with the service which he had been employed to perform. For such acts the defendant is not liable unless it held the captain out to the world as having authority, and the case is barren of any such showing. Bowler v. O'Connell, 162 Mass. 320, 38 N. E. 498, 27 L. R. A. 173.

It is true, as urged by the plaintiff, that the captain is the general agent of the owners, but a general agent is not an unlimited agent. His authority is necessarily restricted to the transactions and concerns within the scope of the business of the principal. 1 Am. & Eng. Enc. Law (2d Ed.) p. 990. To bind his principal, he must act within the usual and ordinary scope of the business he is employed to transact. His authority is measured by the usual extent of his employment. 1 Pars. Cont. p. 41. A shipmaster is a limited agent, and can only bind the owners by contracts relative to the usual employment of the ship, and means requisite to that employment. Kent, J., in Lemont v. Lord, 52 Me. 389. The principal is liable for the authorized act of his agent, because it is his own act, and for the acts of his agent within the scope of the authority which he holds him out as having, or knowingly permits him to assume, because to permit him to deny it would be to permit him to commit a fraud upon innocent persons. 1 Am. & Eng. Enc. Law (2d Ed.) p. 990.

In the case at bar no habit or custom is shown, no holding out to the world of the captain as having authority to do the par

ticular act. It was his own act, and not that of his principal. The defendant itself never received the telegram and never became charged with the duty of its delivery, and it is therefore unnecessary to consider the instruction given as to the degree of diligence to which the defendant was bound, or the degree of negligence for which it would be liable.

Exceptions overruled.

(94 Me. 374)

KELLEY V. YORK CLIFFS IMP. CO. (Supreme Judicial Court of Maine. Nov. 23,

1900.)

EQUITY-SPECIFIC PERFORMANCE-STOCK. 1. It is never obligatory upon the court to decree the specific performance of a contract. The court will always exercise an unfettered discretion to refuse such a decree until it is satisfied that the contract is fair and equitable, and was entered into advisedly, understandingly, and without mistake.

2. In this case, if the contract is susceptible of the construction placed upon it by the plaintiff, it is manifestly unequal; and, further, was evidently made under a mistake on the part of the defendant as to a material fact. (Official.)

Appeal from supreme judicial court, York county, in equity.

Bill by John W. Kelley against the York Cliffs Improvement Company. Decree dismissing the bill, and plaintiff appeals. Affirmed.

Argued before WISWELL, C, J., and EMERY, STROUT, SAVAGE, FOGLER, and POWERS, JJ.

G. F. Haley, Leroy Haley, and John W. Kelley, for plaintiff. Geo. C. Yeaton, for defendant.

EMERY, J. This is a bill in equity, in which the court is asked to decree the specific performance of an alleged contract for the conveyance of two parcels of land at York Cliffs. As to such applications generally, it seems advisable to iterate and affirm what was said by this court in Mansfield v. Sherman, 81 Me. 365, 17 Atl. 300, viz.: "Such an application is addressed to the sound discretion of the court. Not every party who would be entitled as of right to damages for the breach of a contract is entitled to a decree for its specific performance. Before granting such a decree, the court should be satisfied not only of the existence of a valid contract, free from fraud, and enforceable in law, but also of its fairness, and its harmony with equity and good conscience. However strong, clear, and emphatic the language oʻ the contract, however plain the right at law, if a specific performance would, for any reason, cause a result harsh, inequitable, or contrary to good conscience, the court should refuse such a decree, and leave the parties to their remedies at law. In an equity proceeding the complainant must do equity, and can obtain only equity."

From the evidence in this case we find the following facts: The York Cliffs Improvement Company was organized in 1892 to purchase, improve, lease, and sell lands at York Cliffs, a summer resort. It purchased some 400 acres of land, laid it out into lots, built a hotel, and made other improvements. It incurred some debts, but did not sell much land, and was not a financial success. In August, 1898, the plaintiff, in behalf of a client who did not wish his name to be known, approached the president and some of the directors of the company with a view to purchase the two parcels in question. After some negotiation, the bond of the company in the sum of $15,000 was given to the plaintiff for the conveyance of the land to him on or before September 10, 1898, upon condition of "the said Kelley paying to the said company on delivery of said deed of fiftythree thousand seven hundred and fifty dollars, less the sum of fifteen thousand dollars and interest thereon," etc. The deduction was the amount of two existing mortgages on the land which Kelley was to assume and pay.

Instead of tendering the above-named sum in money when calling for the deed of conveyance, the plaintiff, Kelley, or his client, procured certificates of shares of the company's stock to the amount of 381 shares of the par value of $100 each, which, however, were not standing in the name of either on the books of the company. These certificates, indorsed or assigned in blank, the plaintiff tendered to the company (with an accompanying bill of sale of them) as good for $38,100 of the agreed purchase money. The balance ($600) he tendered in money. This tender of part money and part stock was refused.

The plaintiff claimed a right to tender stock, instead of money, under a by-law of the company adopted at the time of its organization of the following tenor, viz.:

"Any stockholder shall have the right at any time to convert any or all of his holdings in the capital stock of the company into holdings in real estate upon such terms as may from time to time be prescribed by the directors," which by-law was supplemented by a resolution of the board of directors, passed November 2, 1892, "that hereafter the stock of this company shall be accepted at not less than its par value in payment for land."

It does not appear that the plaintiff or his client owned any of the stock of the company at the time of making the contract and execution of the bond for the conveyance. Indeed, a reasonable inference from the evidence is that he did not. A question is, therefore, raised whether the by-law and resolution include purchasers who were not stockholders at the time of the contract for purchase. We do not find it necessary to decide that question now, as this suit is more properly determinable upon other controlling facts.

About the time of the adoption of the reso

lution a schedule price list of the company's lots of land was made and approved. No lots appear to have been sold for or paid for in stock, and for many months before this contract no sales at all appear to have been made. The business of the company had been for some time at a standstill. The president and the director, who made this contract for the company, both testify that the by-law and resolution had never been acted upon, and had escaped their memory; that these were not in their minds, and that no allusion was made to either of them, or to stock payments, during the negotiations; that they made a price less than 40 per cent. of the schedule price, and understood they were selling at that reduced price for cash. They were aged men, upwards of 80, and we see no reason to doubt the truth, of their testimony.

There is also evidence that the land was salable at that time at a price in money in the neighborhood of $50,000, while the stock, par value of $100, was not salable for over a few dollars per share. Indeed, some of the stock pledged as collateral had been sold after advertising for $1 per share, the pledgor not choosing to buy it in though apprised of the time and place of sale.

The most that can be extracted for the plaintiff out of the evidence is that the officers of the company, supposing they were making an advantageous sale for money, by mistake made a disastrous sale for stock of doubtful value. Whether the sale was for money or for the stock was of great moment to both parties. Waiving the questions (1) whether the company had the power to sell its assets for its stock, and (2) whether the by-law, resolution, and bond will bear the construction contended for by the plaintiff, it must be evident that a contract so construed would be largely one-sided. The plaintiff would obtain land of considerable money value for stock of little money value, I while the defendant would suffer loss, and be seriously crippled in its resources. These considerations, the mistake and the inequality, are enough to show that the court should not enforce specific performance, but should leave the plaintiff to such damages as he can recover at law, if any. Mansfield v. Sherman, 81 Me. 365, 17 Atl. 300.

Decree below affirmed, with costs on the appeal.

(94 Me. 371)

TABBUTT v. GRANT. (Supreme Judicial Court of Maine. Nov. 22, 1900.)

DEED-RIGHT OF WAY-NONUSER.

1. Where the owner of a larger tract of land conveys out of it a smaller tract, and in the deed reserves to himself and his heirs a right of way across the conveyed land, which becomes definitely located, a right of way over that particular location becomes vested in the grantor as effectually as if by express grant.

EMERY, J. The plaintiff formerly owned a tract of land 325 acres in extent situated upon both the east and west sides of the highway. On the west side of the road was her dwelling house. On the east side of the road, and nearly opposite the dwelling house, was a spring of water about 25 rods from the road. This spring had been used in connection with the house until there was a well-worn path between the two.

In 1879 the plaintiff conveyed out of this tract a smaller tract of 100 acres on the east side of the road, and including the spring. In the deed of conveyance, however, was this clause: "Be it also provided that I, Fidelia Tabbutt [the plaintiff], and my heirs, shall have the use of the spring on said lot; also right of way to the same." After this conveyance the plaintiff continued to use the spring and the old path thereto for at least 10 years as the way reserved in the deed. This clause in the deed and the facts above recited vested in the plaintiff, as by express grant, a right of way to the spring over this particular path, at least so long as she remained the owner of any part of the original tract. Winthrop v. Fairbanks, 41 Me. 307; Bangs v. Parker, 71 Me. 458, 460.

In 1898, the defendant, having succeeded to the title to the 100-acre tract (the servient estate), built, against the plaintiff's protest, a fence along the highway across this path, thus shutting the plaintiff out from its use for access to the spring. This action is for such obstruction.

The defendant shows no release by deed, but claims that the evidence of the conduct and statements of the parties shows a release of the plaintiff's right of way over this particular path as effectual as one by deed. It appears that some six years before the fence was built the plaintiff removed from the house opposite the spring to another house on her remaining land, leaving a son and his family in the old house. During the entire six years she used another and different and more convenient path to the spring,