tion of the premises. The second is dated nearly seven years after the license thereJanuary 24, 1888, for $333.75 "on account for had expired under Rev. St. c. 73, § 17. with him for the farm he now lives on." Finally, if the original contract could have The third is dated January 28, 1892, for $253.- been proved and all other obstacles over17 "in full payment for farm, and I agree come, the plaintiff has been guilty of such to give him a deed as soon as convenient to laches as to preclude any just claim for equido so." On September 28, 1892, nine months table interference. He has slept too long after the last receipt, John R. Toothaker as upon his rights. Spaulding v. Farwell, 70 administrator of the estate of Abner Tooth- Me. 17; Frost v. Walls, 93 Me. 405, 45 Atl. aker, under license to sell, granted by the 287; Clark v. Chase, 101 Me. 270, 64 Atl. probate court on May 31, 1884, did give a 493. deed to the plaintiff of two parcels of land for the consideration of $500, and the defendants claim that all was then conveyed that was ever agreed to be conveyed. The total amount paid by the plaintiff as represented by the receipts was $707.45, a little less than the $725 which the plaintiff claims was the agreed price eight years before, and much less if interest were added, while it is a little more than the $500 with interest as claimed by the defendants. The entry must be: Bill dismissed with a single bill of costs for defendants. (105 Me. 471) PANCOAST v. DINSMORE. (Supreme Judicial Court of Maine. 1909.) June 28, 1. VENDOR AND PURCHASER (§ 334*)-BREACH OF CONTRACT TO CONVEY RECOVERY OF [Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. 88 959-980; Dec. Dig. § 334.*] 2. PRINCIPAL AND AGENT (8 136*)-PAYMENT TO AGENT-LIABILITY OF AGENT. Where money has been paid to an agent for may be recovered back from the latter, the his principal, under such circumstances that it agent is liable as a principal so long as he stands in his original position, and until there ing paid over the money to his principal, or done has been a change of circumstances by his havsomething equivalent to it. However, the significant and persuading Money paid in advance as part of the purfact is that the parties themselves on Septem-chase price of real estate may be recovered back, ber 24, 1892, regarded the transfer of that if the owner fails to make a conveyance in ac cordance with his contract. date as closing the transaction. The deed was then delivered, and doubtless the notes referred to in the first receipt were then surrendered. If the deed was not correct, the plaintiff must have known it and need not have accepted it. Its acceptance without protest and its retention for 15 years without seeking further relief are almost conclusive proof of the fact that all that had been bargained for had been conveyed. Especially is this true in view of the fact that John R. Toothaker lived until January 18, 1906, and during this time more than 13 years after the conveyance was a near neighbor of the plaintiff. Why was not the error or fraud discovered or remedied during the lifetime of Mr. Toothaker? Why wait until death and the statute should deprive the court of the testimony of both parties to the transaction? Such silence on the part of the plaintiff is utterly inconsistent with his present claim. It is unnecessary to consider at length other points in defense, all possessing merit and all rendering a decree of specific performance inadvisable, such as the indefiniteness or ambiguity in description, and the failure to satisfactorily prove any possession of the property by the plaintiff or any such conduct on the part of John R. Toothaker as to create an equitable estoppel based on an equitable fraud, which is the very essence of this proceeding. Woodbury v. Gardner, 77 Me. 68 70. Again, while the contract is alleged to have been made by John R. Toothaker in his individual capacity, the title to the property was not in him, but in Abner Toothaker, of whose estate he was administrator, and it was by an administrator's deed that the farm was conveyed to the plaintif, and that, too, [Ed. Note. For other cases, see Principal and Agent, Dec. Dig. § 136.*] 3. PRINCIPAL AND_AGENT (§ 143*)—CONVEYANCE-PARTIES-UNDISCLOSED PRINCIPAL. with covenants of warranty from another, who When one has contracted to take a deed is the ostensible owner, but who is really the agent of an undisclosed principal, he is not obliged to accept a deed from the principal, when discovered, though he may do so. A party has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 502-512; Dec. Dig. § 143.*] 4. VENDOR AND PURCHASER (§ 82*)-CONTRACT -MODIFICATION CONSIDERATION. If an intending purchaser, having contracted to take a deed from one who is the ostensible owner, agrees afterward, without consideration, to accept a deed from the real owner, in lieu of the deed contracted for, he is not bound by such agreement. It is a new contract, and requires a new consideration. [Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. 82.*] (Official.) Exceptions from Supreme Judicial Court, Piscataquis County. Action by Julia B. Pancoast against David E. Dinsmore. There was a directed verdict for plaintiff, and defendant excepts. Exceptions overruled. Action of assumpsit for money had and re For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes ceived, with specifications of what the plain- | Therefore, so far as the case has yet been tiff expected to show and prove under the stated, the plaintiff has a clear right to remoney had and received count. Plea, the cover in this action. general issue. During the trial, the presiding justice excluded certain evidence offered by the defendant, and at the conclusion of the testimony ordered a verdict for the plaintiff. To these rulings the defendant excepted. The case is stated in the opinion. J. B. & F. C. Peaks, for plaintiff. C. W. But the defendant, not controverting the facts thus far outlined, claimed and offered evidence to show that Hilton himself was acting as the authorized agent of the real owner of the farm to sell it, and that the plaintiff's husband knew this fact before the time fixed for the delivery of the deed, and also knew who was the true owner. But it is not claimed that either the plaintiff or her husband knew these facts at the time the contract was made, except from the clause in the contract describing the farm as "belonging to the estate of William S. Perkins." SAVAGE, J. This case comes up on defendant's exceptions to the exclusion of evi- The defendant further offered to show that dence and to the ordering of a verdict for the plaintiff's husband, acting as her agent the plaintiff. The evidence in the case shows (and we assume with authority from her), that the plaintiff negotiated with the defend- after the time specified in the contract for ant for the purchase of a farm. The negotia- the delivery of the deed, and waiving strict tions ended in a written contract signed by performance as to time, agreed, first with the defendant as agent for one Hilton. By the authorized attorney of the owner, and latthe terms of the contract Hilton was to ex- er with another agent of the owner, upon a ecute and deliver to the plaintiff, at a time later time for the delivery of a deed; that a and place certain, a warranty deed of the deed from the owner direct to the plaintiff, farm, with the usual covenants, and the and a mortgage back, were exhibited to Mr. plaintiff was to pay $400 down, that is, at the Pancoast, and that they were satisfactory; execution of the contract, and to pay or se- that in pursuance of an arrangement made cure the balance of the purchase price at the with Mr. Pancoast, the deed of the owner delivery of the deed. The plaintiff paid the and the mortgage were brought to Dover, for $400 to the defendant, and he still holds the the purpose of transferring the title to the money, and it is not claimed by Hilton. At plaintiff; that that deed was seasonably tenthe date of the contract Hilton did not own dered to the plaintiff; that the plaintiff rethe farm, nor did he own it at the time fixed fused to pay or secure the unpaid balance for the delivery of the deed, nor has he owned of the purchase price, as stipulated in the it at any time since, and he has never execut- contract; and that the deed tendered would ed or tendered any deed of it. He might have have conveyed a complete title to the plainput himself in a position so that he could per- tiff. form the contract on his part, by seasonably procuring title in his own name, but he did not. After the time specified for the delivery of the deed had passed, and after demand for the repayment of the money, the plaintiff brought this suit to recover of the defendant the $400, advanced towards the payment for the farm. The defendant also offered to show that the contract between the plaintiff and Hilton was ratified by the real owner. All this evidence was excluded, and, no other being offered, a verdict was ordered for the plaintiff. The position of the defendant is that the real owner, a Mrs. Coughlan, was an undisclosed principal, of whom Hilton was the agent, and that a tender of a deed by Mrs. Coughlan was as effectual to hold the plaintiff as would have been a tender of a deed by Hilton, had the title been in him. But this conclusion does not follow. The plaintiff's contract was with Hilton as a principal. She Under these circumstances, it is not questioned, and cannot be, that the defendant, though only an agent, is liable in this action | for the money received by him, unless some of the defenses tendered by him, and to be referred to later, are valid and effective. The rule is that where money has been paid to an agent for his principal, under such circum-contracted with no one else. Doubtless, if stances that it may be recovered back from the latter, the agent is liable as a principal so long as he stands in his original position, and until there has been a change of circumstances by his having paid over the money to his principal, or done something equivalent to it. 1 Am. & Eng. Ency. of Law, p. 1129. In this case, Hilton, the principal, had utterly failed to perform his contract. He could neither enforce payment of the unpaid part of the purchase price, nor rightfully retain that part which had been paid. Richards v. Allen, the owner had placed the title in Hilton for sale as agent, and he had performed his contract by the execution and delivery of a deed, by the principles of the law of agency, the undisclosed owner might have held the plaintiff for the price. Doubtless, too, the plaintiff might have held the owner, as undisclosed principal, to the performance of the contract made by her agent. This rule is well settled, and is the doctrine of Kingsley v. Siebrecht, 92 Me. 23, 42 Atl. 249, 69 Am. St. Rep. 486. But this case does not fall within these rules. disclosed principal to a third party who contracted with the agent, seeks to bind a third party to an undisclosed principal, in the case of an unperformed contract. ment of claims by creditors, either against the debtor or his property. [Ed. Note.-For other cases, see Bankruptcy, Dec. Dig. § 387.*] 3. BANKRUPTCY (§ 386*)-DISCHARGE-POWER OF STATE COURT TO ANNUL. It is good sense, as well as sound law, that, 2. BANKRUPTCY (§ 386*)-DISCHARGE on ComPOSITION - ACTION ΤΟ REACH PROPERTY in case of a purely executory contract, a parFRAUDULENTLY OMITTED FROM SCHEDULE. ty dealing with another as principal, though When a debtor has been discharged from in fact he is agent, is not compellable, at all his debts on a composition in bankruptcy, a bill events, to accept performance from the undis-in equity by a creditor, charging that the debtor fraudulently concealed and omitted from his closed principal, when discovered, though he schedule of assets, filed in the bankruptcy court, may do so. He may well say: "This is not money and property of his own which should the contract I made." In case an agent, in have been included therein, and that the creditor, relying upon the correctness of the schedules, making a contract with a third party, acts in was induced thereby to accept the composition, his own name, and does not disclose the name does not lie, in the state court at least, to reach of his principal, or the existence of an agen- the property thus concealed and omitted, and cy, the agent becomes, as to that third party, apply it to the payment of the creditor's claim. the contracting party. 1 Am. & Eng. Ency. of Dec. Dig. § 386.*] [Ed. Note. For other cases, see Bankruptcy, Law, p. 1164. And the third party may stand on the contract which he has made. It was well said in Boston Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9: "A party has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. It may be of importance to him who performs the contract. He may contract with whom he pleases, and the sufficiency of his reasons for so doing cannot be inquired into." And, were such reasons open to inquiry, it is easy to see that one might be willing to take the warranties of one person in a deed, when he would not take those of another. At any rate, he is only obliged to take the deed which he contracted to take. It follows that the plaintiff was not bound in law to accept Mrs. Coughlan's deed, when tendered. A discharge in bankruptcy cannot be annulled nor disregarded by a state court. It must be attacked for fraud in its procurement in the federal courts, if anywhere. And the same rule applies to fraud in the proceedings for a bankruptcy composition. [Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 386.*] (Official.) 4. APPEAL AND ERROR (§ 15*)-FORM OF REMEDY-APPEAL AND EXCEPTIONS. is not necessary for plaintiff to both except and appeal, but either is sufficient. Where a demurrer is sustained to a bill, it [Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 15.*] Exceptions and Appeal from Supreme Judicial Court, Piscataquis County, in Equity. Bill by Alma Turner against Micajah Hudson. Decree of dismissal, and plaintiff excepts and appeals. Exceptions overruled, and appeal dismissed. Bill in equity, brought in the Supreme Judicial Court, Piscataquis county. The bill of exceptions states the case as follows: But the defendant says further that the plaintiff by her agent waived the contract in respect to who should give the deed, and agreed to accept a deed from the owner direct, in lieu of one from Hilton. If so, this constituted a new contract. It made, as to the plaintiff, a new contracting party. For this contract no consideration has been shown or offered. It was nudum pactum, and not binding upon the plaintiff. She still had the right to stand upon her original bargain. It is thus seen that the evidence offered, if his schedule of assets, in bankruptcy, proptrue, presented no defense. It was immateri-erty of great value which in equity belonged al, and was rightfully excluded. And the verdict for the plaintiff was properly ordered. Exceptions overruled. (105 Me. 476) TURNER v. HUDSON. (Supreme Judicial Court of Maine. June 28, 1909.) 1. BANKRUPTCY (§ 387*)-DISCHARGE-Order CONFIRMING COMPOSITION WITH CREDITORS. In a case where a bankrupt offered, under Bankr. Act July 1, 1898, c. 541, 30 Stat. 550 (U. S. Comp. St. 1901, p. 3418), a composition to his creditors, which was accepted by the creditors and confirmed by the bankruptcy court, it is held that, so long as the order confirming the composition stands, it has the effect of a discharge, and bars all remedies for the enforce "This is a bill in equity, brought by the plaintiff against the defendant, wherein it is alleged that the said defendant did conceal from his creditors, and did withhold from to his said creditors, and did after his discharge by the court of bankruptcy take to himself said withheld and concealed property, to the damage of said plaintiff, who was and is a creditor of said defendant, in fraud of said plaintiff; and in said bill said plaintiff asks for relief from said court, and that said defendant account to her as such creditor for said property so withheld and concealed by him." The defendant demurred to the bill, the demurrer was sustained, and the plaintiff excepted and appealed. Argued before WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and KING, JJ. J. S. Williams, for plaintiff. Hudson & Hudson, for defendant. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes SAVAGE, J. Bill in equity. The defendant demurred. The justice of the first instance sustained the demurrer and dismissed the bill, with costs. The plaintiff both excepted and appealed. Either would have been sufficient. It was not necessary to do both. The plaintiff in her bill charges, in substance, that on August 29, 1904, she was a creditor of the defendant; that he on that day filed his voluntary petition in bankruptcy in the proper federal court, with the required schedules of assets and liabilities, under oath, which schedules purported to contain a true and correct inventory of his property, and a full and true statement of his debts, and was adjudicated a bankrupt; that the plaintiff was named in the schedules as an unsecured creditor, and that she seasonably made proof of her debt; that subsequently the defendant offered a composition to his creditors, under the terms of the bankruptcy act, which was duly accepted by the requisite creditors in number and amount, and was confirmed by the bankruptcy court; that the plaintiff accepted the terms of the composition and received the percentage, and that she did so under the full and reasonable belief that the defendant's schedules of assets contained an accurate inventory of his property, relying upon, and being thereto induced by, the defendant's representations, statements, and inventory under oath as aforesaid; that the defendant, with the intent to cheat and defraud the plaintiff of the same, knowingly withheld, concealed, and omitted from said schedules a large amount of money and property, which was his own, and not exempt, to secure the same for his own use and behoof, and which he has since taken and appropriated to his own use; that she was ignorant of the facts so charged as to fraud until a brief time before she filed her bill; and that she is willing to return the percentage received. Upon these allegations, which for the present must be assumed to be true, the plaintiff claims that a trust has arisen in her favor in the property so fraudulently omitted from the bankruptcy schedules, and asks that the property may be applied in payment of her debt. Several grounds of demurrer are suggested in argument, but we shall have occasion to notice only one. The plaintiff seeks to establish a trust for the payment of her claim -a trust growing out of a fraud by which the acceptance was procured. If the claim might be tenable under any circumstances, concerning which we express no opinion, it could only be upon the theory that her claim against her debtor is enforceable in some way, at law or in equity. If she has no enforceable claim against the debtor, she has none against his property, for the latter is founded upon the former. The alleged trust The bill shows a composition in bankruptcy accepted and confirmed. Section 14c of the bankruptcy act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]) provides that the confirmation of a composition shall discharge the bankrupt from his debts, with exceptions not material in this case. The confirmation works a discharge by operation of law. In re Merriman, Fed. Cas. No. 9,479. Therefore the defendant was discharged from his debt to the plaintiff. While such a discharge remains in force, it cannot be set aside or annulled by a state court. It is conclusive. Corey v. Ripley, 57 Me. 69, 2 Am. Rep. 19; Symonds v. Barnes, 59 Me. 191, 8 Am. Rep. 418; Balley v. Corruthers, 71 Me. 172. It must be attacked for fraud in the court of bankruptcy, if anywhere. Collier on Bankruptcy (7th Ed.) 242. The authority of Congress is paramount over the subject of bankruptcy. It may make such laws and provide such remedies as it sees fit. It may limit the time within which such remedies must be sought, and it may prescribe the remedial procedure. It may determine the effect of a discharge, and how and when it may be attacked for fraud. The federal jurisdiction is exclusive. Neither the state Legislature nor the state court has any jurisdiction over these matters. If this court were to attempt to grant the relief sought, it could only be done by disregarding the defendant's discharge, and that the court has no right to do. The plaintiff's brief calls our attention to the declaration of a text-writer on Bankruptcy to the effect that "the order confirming a composition is not a bar to a suit to collect the debt when the composition was procured by fraud. The reason for this rule is that fraud vitiates the whole composition, and leaves the debtor and the bankrupt in the same position that they were in before the composition was attempted." If this be so, then every composition and every discharge in bankruptcy is open to attack in the state courts, on the ground of fraudulent procurement, a doctrine which is opposed to sound reason and all authority. But the cases cited by the learned writer do not support the text. One is Brownsville Mfg. Co. v. Lockwood (C. C.) 11 Fed. 705. This was the case of a composition at common law, and not in bankruptcy, and, of course, has no proper application in this case. Another was Pupke v. Churchill, 91 Mo. 81, 3 S. W. 829. This was a case where a debtor failed to carry out a composition agreement after it had been accepted and confirmed, which has no bearing on this case. And the third was Ex parte Halford, 19 L. R. Eq. 436. This was an English case. It is evident that the jurisdiction of English courts in bankruptcy matters can in no sense be a precedent in this country, where the jurisdiction of the federal court and the want of jurisdiction of tional limitations. We have not been able to | 4. MASTER AND SERVANT (8 217*)-DUTY TO find any authority which sustains the contention of the plaintiff. The bankruptcy act itself provided a remedy for the kind of a fraud of which the plaintiff now complains. Under section 13, a composition may be set aside for fraud in its procurement. And that this includes the fraudulent omission of property from the schedules has been held in Re Roukous (D. C.) 128 Fed. 645, and in Re Wrisley Co., 133 Fed. 388, 66 C. C. A. 450. It is true, as the plaintiff says, that application for the setting aside of a composition must be made within six months after the confirmation, and that she did not discover the fraud in season to take advantage of the statute. In re Jersey Island Packing Co. (D. C.) 152 Fed. 839. But that does not change the statute. As we have said, Congress had paramount authority to grant such remedies as it saw fit, and to prescribe a statute of limitation within which, and not beyond, wronged parties might avail themselves of them. The remedy provided by Congress is exclusive. The defendant obtained a discharge in bankruptcy. It has never been revoked nor set aside. So long as the order confirming the composition stands, it must have the effect of a discharge. Collier on Bankruptcy, (7th Ed.) 294. It is a complete bar to the plaintiff's claim, and to all remedies for its enforcement against the defendant or his property. Accordingly the plaintiff's bill was properly dismissed. Exceptions overruled. Appeal dismissed, with additional bill of costs. No machinery will be found safe for those who are thoughtless and inattentive, or the hapless victims of unavoidable accidents. 2. MASTER AND SERVANT (§ 154*)-DUTY TO INSTRUCT Servant. The master is not bound to inform the servant what the servant already knew, or what by the exercise of ordinary care and attention the servant might have known. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 308, 309; Dec. Dig. 154.*] 3. MASTER AND SERVANT (§§ 101, 102*)-SAFE INSTRUMENTALITIES-DUTY OF MASTER. It is the duty of the master to use ordinary care to provide and maintain reasonably safe and suitable machinery for the servant to operate, so that by the exercise of due care on his part the servant can perform the service required of him without liability to other injuries than those resulting from simple and unavoidable accidents. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 135, 171, 172, 180-184, 192; Dec. Dig. §§ 101, 102.*] GUARD MACHINERY-WAIVER OF NONPERFORMANCE-REMAINING IN EMPLOY AFTER NOTICE. If an operative continues in the service of his employer after he has knowledge of the nection with which he is required to labor, and unguarded condition of any machinery in conit appears that he fully understands and appreciates the nature and extent of the perils to which he is thereby exposed, he will be deemed ployer's obligation to provide suitable guards, to have waived the performance of the emprotecting rods, and hoods for dangerous machines, and to have assumed the risks of an employment to which he has thus voluntarily and intelligently consented. Servant, Cent. Dig. 88 574-600; Dec. Dig. [Ed. Note.-For other cases, see Master and 217.*] 5. MASTER AND SERVANT (§ 217*)-Guards FOR MACHINERY-DUTY OF SERVANT TO REQUEST. safeguards or otherwise so conducts himself as If an operative does not ask for further to assure his employer that he is content with the machinery and appliances as they are, and not after an injury transfer the risk to his emwill himself take the chance of injury, he canployer. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 574-600; Dec. Dig. 8 217.*] 6. MASTER AND SERVANT (8 217*)—ASSUMP TION OF RISK-MANIFEST DANGER. The plaintiff while operating an unguarded steam laundry mangle in the defendant's laundry received an injury which resulted in the the evidence introduced by the plaintiff and exloss of two fingers. Upon consideration of all amined in the light most favorable to her contentions, held, that the danger incident to the operation of the unguarded mangle was so manifest and so fully understood by the plaintiff that she must be deemed to have assumed the risk of the employment to which she thus understandingly consented. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 574-660; Dec. Dig. 217.*] (Official.) Exceptions from Supreme Judicial Court, York County. Action by Lewanna Wiley against Joshua G. Batchelder. Judgment of nonsult, and plaintiff excepts. Exceptions overruled. Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, CORNISH, and BIRD, JJ. E. P. Spinney, for plaintiff. Allen & Abbott, for defendant. WHITEHOUSE, J. On the 17th day of July, 1906, the plaintiff, a woman 55 years of age, was employed as an operative in the defendant's steam laundry at Sanford, and while engaged in running through an ironing mangle received a severe a tablecloth injury to her left hand, resulting in the amputation of the first and second fingers. This ironing machine, known as a "Ternary mangle," consisted of a steam heated drum or cylinder about 15 inches in diameter, over which were three smaller cylinders or rollers about 8 inches in diameter, padded with cloth. In For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |