was improper, and told the jury to disregard it. See, also, People v. Carney, 29 Hun, 47. Exceptions sustained.

PETERS, C. J., and WALTON, Danforth, VIRGIN, and EMERY, JJ., concurred.

(80 Me. 491)

MERRILL et al. v. WYMAN.1

(Supreme Judicial Court of Maine. August 3, 1888.) FIXTURES-MACHINERY-INTENT OF PARTIES-CONVEYANCE.

In a conveyance of a mill privilege by metes and bounds there was a distinct clause conveying "the machinery, and its appurtenances" of the mill, "with the right to use said machinery in said mill for two years." The mill was not within the metes and bounds named, nor was it, except the two-years use, conveyed by any description. Held, that the machinery and its appurtenances passed as personalty.

On report from supreme judicial court, Somerset county.

Trover to recover the value of an elevator belt alleged to have been converted by the defendant. After verdict for plaintiffs the case was reported to the law court, to determine the case upon the law and the evidence. Merrill & Coffin, for plaintiffs. Walton & Walton, for defendant.

DANFORTH, J. This is an action of trover in which the only question involved is the title to the elevator belting sued for. The plaintiffs claim it as personal property under a chattel mortgage from Jerome B. Draper, duly recorded October 13, 1885. The defendant claims title as administratrix under a real estate mortgage from the same Jerome B. Draper to Thomas J. Wyman, her intestate, dated November 19, 1883, which was duly recorded as a deed of real estate, but not as a mortgage of personal property. It therefore becomes a material question whether this belting was real estate or personal property. Upon this question we have but little pertinent testimony in the report of the case, except such as may be derived from the acts of the parties; but that must be decisive if from them we can ascertain their intention upon this question. It seems that by deed of warranty dated November 19, 1883, the defendant's intestate conveyed to Draper, the plaintiff's grantor, an unoccupied mill privilege described by metes and bounds. In the same deed, in a distinct clause, he conveyed "the machinery and its appurtenances, of the grist mill, * * * with the right to use said machinery in said mill for two years from this date free from rent." This mill was not within the "metes and bounds" named in the deed, nor was it, except the two-years use, conveyed by any description. At that time there was an elevator belt in the mill, used in connection with the machinery, but whether as appurten. nt to, or an independent part of, it does not appear; and perhaps it is immaterial, for in either case it would pass by the deed. Subsequent to the deed this belting was removed, though left in the mill, and that in question, of greater value, put in. On the same day, and as a part of the same transaction, the mortgage under which the defendant claims was given to secure the purchase money. From this transaction we have no doubt the parties intended to and did make this machinery and its appurtenances personal property, whatever it might have been before. It was not, as in Allen v. Woodard, 125 Mass. 400, included in the description as a part of the real estate. On the other hand, it was described in a separate clause, and the building in which it was situated, and of which it must have been a fixture, if of any, was not sold. but referred to as descriptive, or an identification, of the machinery, thus making a complete separation between that and the building. The sale and transfer of the machinery was immediate and complete. True, the use of the

1 Reported by Leslie C. Cornish, Esq., of the Augusta bar.

mill was transferred, but it was only the use for a limited time, and that rather as a lease of the building in which to operate the machinery for the purpose of profit, and not, as in White v. Foster, 102 Mass. 375, as necessary to keep it in existence. The machinery was not, as growing trees, an inherent part of the land, or even of the building, though it might have been a fixture, and thus a part of the real estate. But as such fixture it is easily distinguishable from the building, and separated from it by a description, as the building may be from the land, and thus rendered personal property, as is often done. It is therefore immaterial whether the mortgage under which the defendant claims covered this belting, as it was not recorded as a chattel mortgage, and it is conceded that the plaintiffs had no knowledge of its existence. In accordance with the provision in the report the entry must be: Judgment on the verdict.

PETERS, C. J., and WALTON, VIRGIN, LIBBEY, and FOSTER, JJ., concurred.

(80 Me. 496)

BILLINGS et al. v. MASON.1

(Supreme Judicial Court of Maine. August 3, 1888.)

PRINCIPAL AND AGENT-AUTHORITY OF AGENT-RATIFICATION.

When an agent, without authority from his principal, assumes to make a contract of sale with certain specified conditions as to other goods to be received in payment, the contract is not complete until the conditions are complied with, and the principal cannot repudiate the conditions and recover of the vendee the full value of the goods sold.

Exceptions from supreme judicial court, Hancock county.

Assumpsit by Billings, Taylor & Co., a firm, for goods sold and delivered. Defendant filed an account in set-off, which the court allowed, and directed a verdict for the balance. To this ruling the plaintiff excepted.

Wiswell, King & Peters, for plaintiff. Hale & Hamlin, for defendant.

DANFORTH, J. In this action no material facts are in dispute. The court, allowing certain alleged payments, directed a verdict for the balance, to which order the plaintiff excepts on the ground that no part of such payment should be allowed. The action is assumpsit upon an account annexed. The defendant admits that he received from the plaintiff the goods charged, and makes no question as to the prices. This makes a prima facie case against him, and, though technically it does not change the burden of proof, it devolves upon him, if he would avoid this responsibility, to give some reason why. The explanation offered by the defendant is that, though he received the goods from the plaintiff, he received them by virtue of an express agreement with an agent, or traveling salesman, of the plaintiff, one element of which was that certain goods of a like kind, which the defendant then had, should be taken in payment. This agreement with the agent is not questioned, but the answer to it is twofold: First, that the agent had no authority to make such a contract; and, secondly, that the contract under which the action is sought to be maintained was made directly with the plaintiff, though in some degree through the instrumentality of the agent. Assuming, under the first, that the agent had no authority to make the contract he did, (and the evidence is quite conclusive upon that point,) still it does not change the conceded fact that he not only assumed the authority to do so, but did actually make such a contract. Waiving for the moment the second point raised, this was the only contract having the assent of the defendant, the contract under which he acted, and by virtue of which he obtained the goods. It is quite clear that the plaintiff cannot hold him upon a contract he did not make, or repudiate the con

1Reported by Leslie C. Cornish, Esq., of the Augusta bar.

tract in part and hold the remainder valid. Brigham v. Palmer, 3 Allen, 450-452. Nor can he be holden upon an implied contract, for that is excluded by the express. The second point relied upon by the plaintiff must fall with the first. True, the order for the goods was sent to the principal, presumably by the agent, with the consent of the defendant. But as to the nature of the order received there is a singular absence of testimony, though we have the evidence of the plaintiff's business manager. Whether it was accompanied with a statement of the contract does not appear. It is certain the agent bad no authority to send any other, and by no other would the defendant be bound. He had a right to suppose that the plaintiff's own agent would send the order correctly, and that when he received the goods they were sent according to the contract. If such were the case, the contract of the agent would be affirmed by the principal in sending the goods. If such were not the case, the defendant would certainly be no more bound than the plaintiff who first gave credit to the agent. This case differs materially from that of Clough v. Whitcomb, 105 Mass. 482, in which an order in writing, signed by the defendant, was sent to the plaintiff. Nor is it like that of Finch v. Mansfield, 97 Mass. 89, in which the agent did nothing more than solicit an order and forward it as received for the action of his principal. But the principle involved in this case is like that of Wilson v. Stratton, 47 Me. 120, in which the agent assumed to make the contract of sale with some conditions, and it was held that the contract was not completed till the conditions were complied with. It is not, however, now a question as to the validity of the contract made, but what was that to which the defendant assented? He can be held to that, and to no other. In any view we can take of the case, there seems to be no doubt as to the terms of the agreement to which his assent was given. If that was a valid contract, the ruling was clearly correct. If it was not, the ruling was more favorable to the plaintiff than it was entitled to in this form of action. In either case, the exceptions must be overruled.

PETERS, C. J., and LIBBEY, EMERY, FOSTER, and HASKELL, JJ., (80 Me. 483)

STETSON v. STETSON.1

(Supreme Judicial Court of Maine. August 3, 1888.)

concurred.

1. DIVORCE-CUSTODY OF CHILDREN-DISCRETION OF COURT-EXCEPTIONS-WHEN LIE. The authority given the court under Rev. St. Me. c. 60, § 17, to make decrees concerning the custody of a minor child upon the divorce of its parents, is complete and unlimited, and to its discretionary exercise exceptions do not lie, even though the effect of the decree is that the child may be removed beyond the limits of the state.2

2. SAME-REMOVAL OF CHILD BEYOND STATE-JURISDICTION.

Even though such child be removed beyond the limits of the state, the subjectmatter remains within the valid jurisdiction of this court, so that the judgment of the court would be valid and binding upon the parent to whom the custody had been decreed, and would be enforceable in another state."

Exceptions from supreme judicial court, Androscoggin county. Petition to change the decree providing for the custody of a minor child upon the divorce of its parents. The petition was granted, and the respondent alleged exceptions.

N. & J. A. Morrill and Geo. C. Wing, for plaintiff. Frye, Colton & White, for defendant.

DANFORTH, J. The authority of the court granting a divorce, over the children, is found in Rev. St. c. 60, § 17, and is as follows, viz.: "The court

1

1 Reported by Leslie C. Cornish, Esq., of the Augusta bar.

As to the jurisdiction of a court awarding a divorce to direct the custody of children, see Pauly v. Pauly, (Wis.) 34 N. W. Rep. 512, and note.

making a decree of nullity, or of divorce, may also decree concerning the care, custody, and support of the minor children of the parties, and with which parent any of them shall live; and alter the decree from time to time as circumstances require." "We find no qualification or restraint of the power given, except such as may be imposed by the sound discretion of the justice presiding. That the result of the decree may cause the removal of the child beyond the limits of the state is not, of itself, an objection. This may be the effect in any case. Though the parent receiving the custody may at the time be a resident within the state, there is no authority, except in cases of crime, to prevent an immediate removal from the state. The order, even in this case, is not that the child shall be removed, though probably such may be the effect of it. But even though it may be so, the child is not removed from the jurisdiction of the court. That has already attached. The decree is a conditional one, subject to modification and change. The mother takes the child subj ct to that condition. On any proper process for a change she is bound wherever she may be to take notice, and though she may not personally be within the jurisdiction of the court, the subject-matter is, so that the judgment of the court will be valid and binding upon her, and by the provisions of the constitution of the United States may be enforced against her though in another state. In such a case as this the great governing principle for the guidance of the court is the good of the child. It may often be for the best interests of the child that it should be removed from the state for the purposes of education, business, or support. If there is any occasion for imposing restraint in this, it is competent for the justice presiding to impose it. The authority given by the statute is to be exercised with such discretion as may be required under the circumstances of each case, and, when conceded, exceptions do not lie to the manner of its exercise. Exceptions overruled.

PETERS, C. J., and WALTON, VIRGIN, EMERY, and HASKELL, JJ., concurred.

(80 Me. 480)

LAMBERT v. CLEWLEY.1

(Supreme Judicial Court of Maine. August 3, 1888.) NEGOTIABLE INSTRUMENTS-INDORSEMENT-BY THIRD PERSON-CONSIDERATION-FORBEARANCE TO SUE MAKER.

Mere forbearance to sue one of the makers of a promissory note, without any binding contract to that effect, is not a sufficient consideration to hold a third person liable who had indorsed the note in blank after it had been signed by the makers and delivered to the payee."

Exceptions from supreme judicial court, Waldo county.

Assumpsit against defendant on a promissory note which he had indorsed in blank after its execution and delivery to payee. Defense, want of consideration. The presiding judge ruled in favor of the defendant, and the plaintiff alleged exceptions.

W. T. C. Runnells, for plaintiff. Joseph Williamson, for defendant.

DANFORTH, J. The case shows that defendant put his name in blank upon the back of a note after it had been signed and delivered by the makers to the plaintiff as payee, as a completed contract. In this state of facts the burden

of proof is upon the plaintiff to show some consideration to make valid any contract arising therefrom. The presiding justice instructed the jury that "the evidence failed to show, and would not authorize them in finding, a valid

1Reported by Leslie C. Cornish, Esq., of the Augusta bar.

As to what is a sufficient consideration to uphold a promise, and to the point that the allowance of time in which to pay a debt is a valuable consideration, see Lipsmeier v. Vehslage, 29 Fed. Rep. 175, and note.

consideration

so as to make it obligatory upon the defendant to

pay the note." The only consideration claimed was a forbearance on the part of the plaintiff to sue one of the makers. But a mere forbearance is not sufficient, even though produced by such signing. There must be a distinct and valid contract, binding upon the plaintiff not to sue. Manter v. Churchill, 127 Mass. 31. The defendant testifies positively that there was no such agreement. The plaintiff testifies that the consideration of the indorsement was "that I would not sue." "He said, if I would not enter my suit, or make any trouble about it, he would see the note was paid." And again, "When Mr. Clewley indorsed the note, it was the understanding that I was not to trouble Mr. Cousens. I was not to commence a suit." Remembering that a chain has only the strength of its weakest link, it would seem that these different statements were equally consistent with a mere forbearance as with an agreement not to sue; and if we also consider that these statements come from a party who must have known the facts, the conclusion is inevitable that the jury would not have been justified in finding a valid consideration for the indorsement. There is an entire want of testimony as to time, and hence nothing to show that there was a single hour when the plaintiff might not have commenced an action without a violation of any legal obligation he was under to the defendant. The instruction that if the note in suit was given solely as a renewal of the supposed obligation it would fall under the same principle, was a necessary sequence. The instructions given under the state of facts arising in connection with the surrender of the old note are unexceptionable. If there were any omission advantage could be taken of it only by the proper requests for further instructions. Exceptions overruled. Judgment on the verdict.

PETERS, C. J., and LIBBEY, EMERY, FOSTER, and HASKELL, JJ., concurred.

(80 Me. 486)

ALLEN v. SMITH.1

(Supreme Judicial Court of Maine. August 3, 1888.)

APPEAL-RIGHT TO APPEAL-FROM PROBATE Court.

A grantee of real estate by a conveyance from an intestate, alleged to have been fraudulent, has a sufficient interest in the estate to authorize him to enter an appeal from the decree of the judge of probate granting the administrator license to sell the same land for the payment of debts.

Exceptions from supreme judicial court, Knox county.

Petition for leave to enter an appeal from a decree of the judge of probate granting license to sell certain land, the record title to which is in the petitioner. The presiding judge denied the petition, and the petitioner alleged exceptions.

C. E. Littlefield, for petitioner. A. P. Gould, for respondent.

*

*

DANFORTH, J. By Rev. St. c. 71, § 23, "lands of which the deceased died seized, * * and all that he had fraudulently conveyed, * * are liable to sale for the payment of debts, under any license granted under this chapter." In this case the intestate, 10 days before his death, conveyed to the petitioner certain lands under such circumstances that it is conceded that the conveyance is fraudulent as against prior creditors. The administrator has asked and obtained a license to sell these same lands for the payment of debts. The petitioner, for reasons stated, having failed to enter his appeal in season, asks for leave to do so now; and the only question presented at this time is whether he has such an interest as will allow him to appeal from the decree

'Reported by Leslie C. Cornish, Esq., of the Augusta bar.