before the sale, which took place in the afternoon of the next day.
Held, that the sale was void. lb.
35. A COMMISSION MEECHANT who sells and delivers property,
intrusted to him for sale, before notice of a revocation of his authority,
is not liable in trover for making such sale. Jones v. Hodgkins, 61 —
480.
36. The bona fide purchaser under such sale and delivery acquires
thereby a good title as against a prior purchaser from the consignor
without delivery. II).
a7. Survey. When the parties to a contract for the cutting and
hauling, or sale, of logs mutually agree upon a person to survey them,
and determine the quantity of each particular quality thereof, the
SAx,B. 495
scale made by such person is binding and conclusive upon the parties
in the absence of fraud or unfair practices by the party seeking to
uphold it. Bailey v. Blanchard, 62 — 168.
38. If the surveyor selected does not scale all the logs his scale is
nevertheless conclusive as far as it goes. lb.
39. The scale bill made by such person and submitted to the parties
is admissible in evidence in an action between the parties, although
the surveyor is not a sworn oflScer, and is not offered as a witness. Ih.
40. The plaintiff having agreed upon a sale to the defendant of
several bundles of unbranded pressed hay, an Ulegal contract by stat-
ute, delivered a number of bales, when a dispute arose as to the qual-
ity, and the plaintiff declared that if the defendant would not take
the lot he should not have any, and thereupon sold to one G. the
whole lot, but did not deliver to him or receive pay for the bales in
the possession of the defendant. Held, that the title to the hay in
the possession of the defendant did not pass to G. Foye v. Southard,
64—389.
41. Ftjturb DeliVeet. A contract for the sale and purchase of
wheat to be delivered in good faith at a future time is not illegal.
Mumsey v. Berry, 65 — 570.
42. But a contract entered into without an intention of having any
wheat pass from one party to the other, but with an understanding
that at the appointed time the purchaser is merely to receive or pay
the difference between the contract and market price, can not be sus-
tained, lb.
43. No action can be maintained for the price of hoops sold iu con-
travention of the provision of R. S., c. 41, § 21. Durgin v. Dyer,
68—143.
44. R. S., c. 41, § 13, providing that the seller of coal shall not
maintain a suit for the price thereof, unless he has caused the same to
be weighed by a sworn weigher and a certificate of the weight deliv-
ered to the buyer, is not complied with ts^hen the weigher is either
the owner of the coal or sells it on commission. Smith v. Campbell,
68—268.
See Loed's Day, p. 855.
(d) Warranty.
45. Whoever sells personal property, in his possession, for a fair
price, becomes by implication of law a warrantor of the title. Kriee-
land V. Willard, 59 — 445.
46. In August the owner of a horse took him into Canada to a
race and returned. In November he sold him to defendant without
informing him of the fact, who in June sold him to the plaintiff. In
the following August the horse was taken from the plaintiff by a rev-
nue officer and sold. Held, that the horse being liable to forfeiture
to the TJ. S. the defendant had no title when he sold him to the plain-
tiff and was liable for the value at the time of seizure. lb.
IV. WHEN VOIDABLE.
47. A vender of goods has a lien upon them, at common law, for
the purchase money, as long as they remain in his possession, though
a promissory note has been given, if it remains in the hands of the
496 SALE.
vender so that it may be given up on discharge of the lien.
V. Warren, 57 — 46.
48. The plaintiff held, by assignment from the defendant, a mort-
gage on real estate in Massachusetts, containing a power to sell upon
breach of condition, in pursuance of which, after due notice, a sale
was made at public auction, in August, 1859, and the property struck
off for $1,950 to the plaintiff's agent, who, without paying the price,
conveyed the property to the plaintiff, who indorsed upon the note
the amount of the agent's bid, less expenses of sale and amount paid
by him on a prior mortgage, and some years later brought this suit to
recover a balance due on the note against the defendant, as indorser.
The defendant offered to prove, that in March, 1861, the property
was sold for $2,300, and claimed that that sum should be allowed as
paid on the note, and that the sale, made in 1859, should be treated
as a nullity. Seld, that in the absence of any evidence tending to
show fraudulent practices on the part of the holder of this mortgage
in making the first sale, or that the property was fairly worth more
at that time than the auction price, this claim must be disallowed,
and the evidence that the property sold for a larger sum at a later
period rejected. Patten v. Pearson, bl — 428.
49. On May 12 the defendant purchased of plaintiff a lot of beans
warranted sound. On the 24th of June the defendant ordered, and
on the 26th rebeived from plaintiff, fifteen barrels of medium beans,
and thereupon, for the first time, notified the plaintiff that fifteen bar-
rels of the first lot were mouldy, and that he had ordered the latter
lot to replace the mouldy ones which he then returned. In an action
to recover for the latter lot, held, that the latter lot could not be sub-
stituted for the mouldy ones without the assent of the plaintiff.
Woodward v. Libhy, 58 — 42.
50. Where, after the sale and delivery of the goods to the pur-
chaser, without the payment of the price, the seller retakes posses-
sion with the consent of the purchaser, the latter making no objection
upon his own account but imposing a condition that the resumption of
possession by the purchaser should not be valid if it would interfere
with the rights of creditors, the sale is effectually rescinded, and an
attachment of the property, made afterwards, by the creditors of the
vendee will give them no rights. Sneed v. Lord, 66 — 580.
V. EE-SALE.
51. When goods have been sold and delivered and are in the ven-
dee's possession, the same evidence is necessary to show a sale to the
original vender as would have been required to establish a sale from
him. State v. Intoxicating Liquors, 61 — 520. Kennedy v. Jones,
67—538.
52. Where it appeared that liquors libeled as intended for illegal
sale were sold in Boston by the claimant and brought into this State
by the vendee, that afterwards the claimant agreed to take them
back, and told the vendee to keep them in a safe place until they
could be sent back, but took no delivery nor gave any credit for their
value, it was held, that there was no re-sale, and the claimant was not
entitled to them. State v. Intoxicating Liquors, 61 — 520.
VI. SALE UNDER LEGAL PROCESS.
58, If, under a license duly issued by the probate court, an admin-
SALE. 497
istrator, after taking the oath, and giving the bond prescribed by the
statute, regularly sell the land described in his license, at public auc-
tion, and execute and deliver a deed thereof to the purchaser, within
a year from the date of his license, then the title passes, although the
deed was not acknowledged until after the expiration of the year.
Poor V. Larrabee, 58 — 543.
54. Aliter, where the land was duly sold and struck off to the pur-
chaser within the year, but the deed thereof was not executed and
delivered until afterwards. lb.
55. A sale on mesne process of the personal property of a stranger
to the process, conveys no title to the vendee ; and the real owner
may replevy it from the purchaser after it has come into his posses-
sion. Coombs V. Garden, 59 — 111.
56. If an officer sell on execution the gersonal property of the exe-
cution debtor, at an adjourned sale, without having posted up public
notice of the time and place of such sale, forty-eight hours prior there-
to, in two or more public places in the town or place of sale, as re-
quired by R. S., c. 84, §§ 4 and 5, the sale will be void, and the officer
a trespasser ab initio. Mayes v. Buzzell, 60 — 205.
57. A notice of a sale of goods taken and appraised on mesne process,
defective for want of sufficient time, is not cured by a postponement
of the sale on the day appointed therefor to one remote enough to
answer the statute requirement. The officer cannot make a valid sale
at the adjournment that would be invalid if made on the day orig-
inally designated. Sawyer v. Wilson, 61 — 529.
VII. GENEKALLT.
58. The plaintiff caused certain cigars and tobacco to be attached
in a suit against one T., and was made keeper by the attaching officer.
It was afterward agreed between T. and the plaintiff that the plain-
tiff should have the property, and that T. should sell it as his agent.
The cigars were not counted, nor the tobacco weighed, nor any price
fixed upon them, nor any credit given T. upon his debt to the plain-
tiff. The property went into the possession of T., and the suit was
not entered. Seld, that the transaction did not constitute a sale, and
the property might be attached by the creditors of T. Chay v. Mil-
lay, 61—327.
59. The plaintiff sold a wagon, with the agreement that it should
remain his property until paid for, and received part payment in cash,
the wagon passing into the hands of the vendee. Afterwards he in-
formed the vendee that he wanted something to show how much was
still due, and the vendee gave him his promissory note for the balance.
Held, that under the registry law (R. S., 1871, c. Ill, § 3), the ven-
der had no longer any title as against the attaching creditors of the
vendee. Boynton v. Libby, 62 — 253.
60. If the owner of a farm sell stones lying on the land, and re-
ceives payment therefor, and the vendee removes them to another
portion of the farm, they become the personal property of the vendee.
Fulton V. Norton, 64 — 410.
61. At Cost. If a seller offers to sell an article at cost, and at the
same time states the cost to the purchaser, who accepts the offer and
pays the amount stated, the jury may find it a sale at cost and not a
32
498 SAIiE — SCHOOL COMMITTEE.
sale at the price named by the seller, and if the cost stated by the sel-
ler is larger than it actually was, the purchaser may, in assumpsit, re-
cover of him the difference between the sum paid and the actual cost.
Willard v. Randall, 65 — 81.
62. In such case, â– whether the contract was for a sale at cost, or
whether it was a sale at the price named, to which the purchaser was
induced to accede by the misrepresentation of the seller as to the cost
price, is for the jury. lb.
63. Where made. A traveling salesman of a N'ew York firm,
obtained in this State an order drawn by the defendant upon the firm
for certain goods, which were forwarded to him by the firm in pursu-
ance of the order. Seld, that as it was optional with the firm to send
the goods or not, the contract was not completed until the order was
accepted, and as it was accepted in New York, the sale was made
there. Burhank v. McDuffee, 65 — 135.
64. A EUNNiNG ACCOUNT for goods sold and delivered, or money
had and received at different times, will not constitute an entire
demand unless there is some agreement to that effect, or some usage
from which such an agreement may be inferred. Goodwin v. Clark,
65—280. Brown v. Burns, 67—535.
65. An instrument under seal was given by a wife to her husband,
reading inter alia, as follows : "I hereby sell, transfer, and make over
to him (her husband) all the wood and timber of every description
now standing and growing upon all the wild lands which I have . . .
together with the grass, cranberries, blueberries, and all other fruit,
if any, which may be found or grown thereon for the space of ten
years from the date hereof," giving him authority to enter the lands
for the purpose of enjoying the property sold, and to control and
manage the same. SpM, that the writing amounted to an executory
sale of the blueberries, afterwards grown upon the land, which would
make them the husband's when picked from the bush, or perhaps
when grown, so far as to enable him to maintain an action in his own
name against strangers taking them. Freeman v. Underwood, 66 —
229.
66. In a bill of sale of one-half of a horse, from E. to S., containing
a stipulation that said S. is to take the horse, keep him and handle
him, said E. to pay one-half the expenses and keeping of said horse
and to receive one-half of the profits which said horse may earn, said
E.'s part of said horse's keeping to be two dollars and fifty cents per
week, the stipulation on the part of E. to pay for the board of the
horse is an independent one, and the sum affixed is payable absolutely,,
profits or no profits. Chapman v. Eames, 67 — 452.
See CoNsiDBEATioiir, 5, p. 100.
SCHOOL COMMITTEE.
"When a statute requires the written report of the municipal
officers, or of the superintending school committee, as a pre-requi-
site to the action of the town, such report signed by a majority is
valid without it appearing that the others acted. Weliber v. Stover,
62—512.
SCHOOL DISTRICT. 499
SCHOOL DISTRICT.
I. GENEEALLT.
II. DIVISION AND DISCONTINUANCE.
I. GENERALLY.
1. Raising Monet. By R. S., 1871, c. 11, § 44, -when a school
district votes to raise money, not only residents, but also persons who,
at the time of raising the money, own therein the class of property
mentioned in the first clause of R. S., 1871, o. 6, § 14, are liable to be
assessed therefor. Hartshorn v. Assessors of Ellsworth, 60 — 276.
2. Money raised for the erection of a school-house upon a lot other
than the one legally designated by the municipal officers of a town,
upon proper appeal from the action of a school district, is for an ille-
gal purpose. Marble v. McKenney, 60 — 332.
3. The single fact that at one time money of a school district was
in the hands of the town treasurer, without proof of any order drawn
upon him for it, or any demand for the money on the part of the dis-
trict, is not sufficient to sustain an action by the district against the
treasurer for the money. School District v. Tebbetts, 67 — 239.
4. And where the district voted not to put certain funds, the pro-
ceeds of property sold, into the treasury but to pay where the district
was owing, the mere fact that, contrary to the vote of the district, the
money went into the hands of the treasurer, by whom it was disposed
of in accordance with the vote of the district does not render him
responsible for it a second time to the district. lb.
5. Formation. Under an article in the warrant "to see if the town
will set off a part of the districts, numbers 9 and 17," so as to form a
school district with contiguous portions of an adjoining town, it is not
competent for the town to set off a portion of a district other than
those specified in the warrant. JRutterfield, v. School District JVb. 6
in Prospect, 61 — 583.
6. Where a party attempting to show that a school district was
formed out of contiguous portions of two towns, shows only the cor-
porate action of -one of the towns, such action must be regarded as
inoperative, in the absence of any evidence of any co-operation on the
part of the other. lb.
7. Evidence of an abortive effort to organize a school district is not
of itself sufficient to rebut the presumption of its legal existence,
arising from its exercising the privileges of a district for one year.
Brown v. Chesterville, 63 — 241.
8. A vote of a school district directing a committee "to sell the
school-house," does not authorize a sale on credit. School District
in Dresden v. ^tna Ins. Co., 62 — 330.
IL DIVISION AND DISCONTINUANCE.
9. A person seeking to recover a tax paid by him to a school dis-
trict, upon the ground that he was not, at the time of the assessment,
a resident of the defendant district, but that the part of the town in
which he resided had been formed into a new district with portions
600 SCHOOL DISTBICT — SCHOOL-HOTTSE.
of a neighboring town, is not entitled to recover unless he shows that
the towns co-operated in their corporate capacity to form such new
district. Butter-field v. School District JVo. 6 in Prospect^ 61 — 583.
10. A report of the selectmen and superintending school committee
stating that under ordinary circumstances a division of a school dis-
trict would not be desirable, yet considering the present state of feel-
ing among its inhabitants, they were of opinion that the peace and
harmony of the district, and consequently the cause of education
would be promoted by a division, the lines of which they recom-
mended, was held a sufficient statement of facts, it appearing that
there was a chronic strife in the district. Webber v. Stover, 62 — 512.
11. The selectmen and superintending school committee of a town
made a written report, accompanied by a statement of facts, recom-
mending the division of a school district, which was accepted by the
town at a meeting held in October, and recorded. At the succeeding
annual meeting, under an article, "To see if the town will vote to.
divide" the district "as recommended," the clerk read the report as
recorded, and the town "voted to accept the report," etc. JETeld, that
the first acceptance did not render the report /wwc^ms officio, and that
the second acceptance effectually decided the. matter. Tb.
12. A report signed by the majority of the school committee and
municipal officers is valid without it appearing that the others acted.
lb.
13. The recommendation of the municipal officers, npon which alter-
ation or discontinuation of a school district is to be made, may be in
general terms, and the town may settle the details as it pleases.
Grindle v. School District, 64 — 44.
14. A vote "to divide school district No. 2, and annex Mark H.
Grindle and all northwest to district No. 3, and the remainder of said
No. 2 district to district No. 1," was held valid, the reference to
Mark H. Grindle being regarded as identifying the homestead owned
and occupied by him, and not as a personal description merely. lb.
15. An omission, in the vote of a town discontinuing a school dis-
trict, to provide for the disposition of the school-house, is not fatal to
its validity. lb.
SCHOOL-HOUSE.
I. LOCATION.
II. EEPAIES.
I. LOCATION.
1. An omission in the return of a warrant for the meeting of a
school district, called for the purpose of locating a school-house, to
state that the place where the notices were posted were public and
conspicuous places within the district, when such was the fact, and
other records in the case show the places to be within the district,
will not invalidate the doings of the meeting, on a petition for injunc-
tion to prevent the town treasurer from paying out money for the
SCHOOL-HOUSE. 501
building such house after appeal to the municipal oflScers and their
reversal of the action of the majority of the district. Marble v.
McKenney, 60—332.
2. When a meeting of a school district has been legally called,
notified and held for the purpose of locating a school-house, the clerk
thereof can not so destroy the effect of the action of the district as
to prevent an appeal therefrom, by refusing to record the application,
warrant and return thereon, for the next meeting, so long as clear
proof of the facts can be made aliunde. lb.
3. The municipal officers of a town have no authority to "decide
where a school-house shall be placed," until, "more than one-third of
the voters present and voting" at a district meeting, legally called for
the purpose, shall have objected to the place voted by the majority.
Goodwin v. Nye, 60 — 402.
4. The simple adjournment for one month of a district meeting,
called for the purpose of locating a school-house, lays no foundation
for the jurisdiction of the municipal officers in the premises. lb.
5. When the location of a school-house has been legally designated
by the municipal officers of a town, a jury summoned under R. S.,
1871, c. 11, § 34, may fix the boundaries and price of the lot, but can-
not change the location to land of another or to that of the district.
Jordan v. School Dist. JVb. 8 in Cape Elizabeth, 60 — 540.
6. The phrase "location of the lot" as used in R. S., c. 11, § 34,
refers to the laying out of a school-house lot mentioned in § 33, and
not to "where the school-house shall be placed" mentioned in § 32.
lb.
7. The provision of R. S., 1871, c. 11, § 33,\that a school-house lot
shall revert to the owner when a school-house has ceased to be there-
on for two years, applies only to an occupancy once had and aban-
doned. Jordan v. Saskell, 63 — 189.
8. It does not apply to a case where no school-house has been
placed on the lot within two years from the time the lot is located by
the municipal officers of the town. lb.
9. The location of a school-house lot is not invalid merely because
it includes by mistake some part of a public way. lb.
10. If the owner of land taken for the location of a school-house
petitions the county commissioners for a jury to consider the question
of a change of location, and for an increase of damages, he can not
after the close of such litigation, repudiate it and maintain trespass
for the taking of the land, upon the ground that the location was
invalid. Jordan v. Haskell, 63 — 193.
11. Under R. S., 1871, c. 11, § 32, providing that at any district
meeting called for the purpose of locating or removing a school-house,
"if more than one-third of the voters present and voting object thereto,
the clerk shall make a record of the fact," a simple record showing
the number of the votes for and against the proposed location is suffi-
cient. It is not necessary that the clerk shall record the names of the
persons objecting, or that they shall make a written objection after
the vote. Norton v. Perry, 65 — 183.
12. If the vote establishing the location has a majority in the
affirmative, and more than one-third in the negative, and within thirty
days afterwards, three or more of those present and voting in the
502 SCHOOL-HOUSE.
negative make a written application to the municipal officers of the
town, reciting the proceedings, upon which proper notice is given,
the municipal officers have jurisdiction of the question of location,
and the certificate of their determination, given to the clerk of the
district within ten days, is conclusive. Ih.
13. A certificate by the municipal officers that they are unable to
agree is not final. They may, notwithstanding, certify to the location
within the ten days. Ih.
14. If at a district meeting called for the purpose of locating a
school-house, a majority vote in favor of a specified location, but
more than one-third present and voting object thereto, and proper
proceedings are had to carry the case to the municipal officers for
decision, and they make a location which is void for any cause, the
location made by the majority of the district does not become valid,
but a new district meeting must be called and proceedings com-
menced de novo. lb.
15. Under articles in the warrant, "to see if the district wiU vote
to build a new school-house, and out buildings and enclose the same,"
and "to see if the district will vote to purchase land to enlarge their
present school-house lot, for said school-house and out buildings and
for yards and play grounds," the district voted to purchase the land
and enlarge the lot. The district thereupon caused a new lot to be laid
out, including the former lot and also land adjoining, the whole being
less than forty rods square, and built a school-house thereon. It also
caused the damages of the owner of the land taken to be appraised
by the municipal officers. Held, that the votes and acts showed that
the object of the proceedings was to lay, out a school-house lot for the
purpose of erecting a school-house upon it, and that it was none the
less a designation of the land for a school-house lot for the erection
of the new school-house that they added the old lot to it and called it
an enlargement of their present school-house lot. Cousens v. /School
District, 67—280.
16. When a school district has designated the land it desires for a
school-house lot, and applied to the owner to sell the same, and he
has refused, the municipal officers of the town may lay out the lot
and assess the damages at the same time. lb.
17. The proper place for returning and recording the doings of the
selectmen in the laying out of a school-house lot for a school district