PATTEN v. FIELD.

77

(108 Me. 299)

by the receiver from the income of the road, I The ownership of the freight car being pass, by the sale, to the purchaser? The the principal contention, the balance of the mortgage which was foreclosed in this case property contained in Schedule B was, by covered not only the railroad and other consent of counsel, ordered delivered to the real property, but also the cars, engines and said purchaser, absolutely and unconditionother rolling stock, and all descriptions of ally. personal property owned by the railroad company, or to be thereafter acquired. The road and its equipment constituted the complete and entire thing which was covered by the mortgage. The road, on the one hand, and (Supreme Judicial Court of Maine. July 15, the equipment on the other, were useless unless held and used together. One of the purposes to be accomplished in the appointment of a receiver, was the preservation of the mortgaged property. This could only be done by repairing the track, and replacing the engines and cars when required. Money expended for either of these purposes becomes incorporated into the corpus of the mortgaged property.

"The claim of the petitioners is, that after the road passed into the hands of the receiver, all its income and profits became their property by an absolute title, and, therefore, that the engines, and other property purchased with such income and profits, vests in them, and do not become part of the mortgaged property. *

"There is no consideration which would justify the Court in holding that the purchasers of the mortgaged property have not acquired title to the rolling stock bought by the receiver. It was as much a part of the mortgaged property as the iron rails put on the track by him."

In accordance with the foregoing opinion the following order was entered:

"And Now, To Wit, this eighth day of August, A. D. 1911, argument upon the foregoing agreed statement of facts having been heard and carefully considered by the Chief Justice, and the Chief Justice being of the opinion that the new freight car mentioned in Schedule B filed and attached to the Order made by the Chief Justice on the twenty-sixth day of January, 1911, is covered by the lien of the mortgage given by the Wilmington and New Castle Electric Railway Company and that the title to the same passed to the purchaser, Solomon Hanford, under the foreclosure sale, and the said new freight car having been held by the said

Solomon Hanford subject to the further order of this Court,

1911.)

1. TRIAL (§ 139*)-DIRECTING VERDICT. returning a verdict for defendant, it is error If the evidence would warrant a jury in to direct a verdict for plaintiff.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 338; Dec. Dig. § 139.*]

2. FRAUD ( 9*)-ACTIONABLE DECEIT EL

EMENTS.

that defendant made a false representation as In an action for deceit, it must be shown to a material fact, that he knew it was false, or made it as a statement of fact of his own knowledge not knowing whether it was true rely on it, and that plaintiff was ignorant of or false, with the intent that plaintiff should its falsity and acted upon it to his damage.

[Ed. Note.-For other cases, see Fraud, Cent. Dig. § 8; Dec. Dig. § 9.*]

3. FRAUD ($64*) - ELEMENTS OF DECEIT QUESTIONS OF FACT.

Whether the elements of actionable deceit existed in an action therefor were questions of fact to be determined from the evidence and the inferences to be drawn from the facts estab

lished.

[Ed. Note.-For other cases, see Fraud, Cent. Dig. §§ 67-71; Dec. Dig. § 64.*]

4. FRAUD (§ 64*)-DIRECTING VERDICT.

Where there were facts and circumstances

in an action for deceit from which the jury might have reached the conclusion that plaintiff did not believe and rely upon the alleged misrepresentations, it was error to direct a verdict for plaintiff.

[Ed. Note.-For other cases, see Fraud, Cent.

Dig. § 70; Dec. Dig. § 64.*]
5. TRIAL (§ 139*)

DIRECTING VERDICT

QUESTIONS FOR JURY.

Where fair-minded and unprejudiced persons might reasonably differ on the conclusions to be drawn from undisputed facts, the question is for the jury.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 338-341; Dec. Dig. § 139.*]

Exceptions from Supreme Judicial Court, Penobscot County.

Action by Harvey H. Patten against William N. Field. On the case for deceit.

Plea, the general issue, with special plea as follows: "And now the said defendant, William N. Field, by his attorney, comes and defends, etc.. when, etc., and says that the said plaintiff, H. H. Patten, ought not to have or maintain his aforesaid action thereof against the said defendant, because the said defendant, William N. Field, avers that after the making of the said supposed promises and undertakings and the accruing of

"It is ordered by the Chief Justice (the Chancellor being disqualified to sit in this cause), that Wilmer Palmer and Joseph Chester Gibson, Receivers of the Wilmington, New Castle and Southern Railway Company, be and they are hereby authorized and directed to deliver unto Solomon Hanford, or his assigns, absolutely and unconditionally, the new freight car mentioned in Schedule the said several causes of action in the B, as aforesaid."

plaintiff's declaration, if any such were made

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

or accrued, a discharge in bankruptcy was granted to him, the said defendant, by the District Court of the United States for the District of Maine. A certificate of such discharge under seal of the said court granting the same is hereto attached."

At the conclusion of the evidence the presiding justice ordered a verdict for the plaintiff for $454, and the defendant excepted. Exceptions sustained.

he says, "there is that $200 check; we have
got to have $800 more to go with it.' I says,
'I wouldn't want to use this woman's check
if this thing isn't going through all right,
because I should feel that I ought to pay
the woman back if we used the check.' He
commenced to talk and wanted to know if I
doubted his financial condition.
don't know. I suppose you are all right.'
He says, 'I am,' and went on to tell his $30,-

Argued before EMERY, C. J., and KING, 000 wool story and about the sheep he owned BIRD, and HALEY, JJ.

in his own right; that he practically owned

Martin & Cook, for plaintiff. Fellows & a thousand sheep. He says, 'I am good for Fellows, for defendant.

'PER CURIAM. Action on the case for deceit. In addition to the general issue, the defendant pleaded his discharge in bankruptcy proceedings commenced after the time of the alleged deceit. The case comes up on exceptions to the ruling of the presiding justice directing a verdict for plaintiff.

It appears that the plaintiff, his partner, Mr. Sayles, and the defendant agreed to organize a corporation to purchase a woolen mill property in Uxbridge, Mass. Mr. Sayles was one of the heirs owning the property and was to put in his interest for stock in the corporation; $25,000 was to be paid to the other heirs, $1,000 on September 1, 1909, and the balance on September 15, 1909. The plaintiff and the defendant were to organize and finance the corporation and each have a block of the stock equal to that of Sayles. The corporation was organized and the plaintiff paid the expenses thereof. Thereafter the plaintiff and defendant went to New York and made arrangements with certain brokers to undertake the financing of the proposition, to whom it was necessary to pay $54 for advertising. This amount was for defendant to pay; but, not having the money, he requested plaintiff to pay it for him, saying: "I am all right. I

***

have been holding $30,000 worth of wool about two years, and it has taken every dollar I could get to pay the storage on that wool. I didn't want to sell on a sacrifice, and I will finance the whole proposition in 60 days." The plaintiff paid the $54, for which defendant gave him his check on a Boston bank. The check was immediately presented, but there was "no funds" to pay it, and it has not been paid.

the whole amount.' I says: 'Field, I am willing to stand one-half of this. I will pay $400 and you pay $400, and we will turn the check in.' He says: 'I can't this morning. If you will sign a note with me that is, have the woolen company on it and Sayles' name-we will take care of it; I will take care of it myself.' He says, 'And then you ain't losing but one-half anyway,' and we took and signed the note."

On October 1st the plaintiff paid the note, and also sent the woman in Maine the $200 she had sent for stock.

The defendant was not present at the trial, and no evidence was presented in his behalf other than his discharge in bankruptcy. The presiding justice asked plaintiff's attorney how much he claimed, and he replied, "For the note, $400, and the check, $54." Thereupon a verdict for $454 was directed for the plaintiff.

[1] If the evidence in the case would have warranted the jury in returning a verdict for the defendant, the exceptions must be sustained; otherwise, overruled.

[2] To sustain this action there must be clear and decisive proof of each and all the essential elements of actionable deceit; that the defendant made a representation in regard to a material fact; that the representation was false; that he knew it was false, or made it as a statement of fact of his own knowledge not knowing if it was true or false; that it was made with intent that the plaintiff should rely and act upon it: and that the plaintiff was ignorant of its falsity and reasonably believed it to be true, and relied upon it, and acted upon it to his damage. [3] Whether these elements existed in this case were questions of fact determinable from the evidence, and the inferences to be drawn from facts established by the evidence. Had the case been submitted to the jury, they would undoubtedly have been justified in finding for the plaintiff if they accepted his evidence and drew their inferences in his favor. [4] But, on the other hand, would not a verdict of a jury in the defendant's favor be sustainable upon the evidence in this case? It may be conceded that a jury would not have been justified in this case "Mr. Field came into the office on the in finding that the defendant did not make morning of September 1st. 'Now,' he says, a false representation of a material fact, 'we have got to raise that thousand dollars.' knowing it to be false, and with intent that

On September 1, 1909, a note of the corporation for $800 on 30 days was made and signed on the back by the plaintiff, defendant, and Sayles. The proceeds of this note, together with a check for $200 which plaintiff had received from a woman in Maine for the sale of stock, was used to pay the first payment on the property. With respect to the making of this note the plaintiff testified:

Me.)

MARSH BROS. & CO. v. BELLEFLEUR

79

of election of remedies does not apply.

[Ed. Note.-For other cases, see Election of Remedies, Dec. Dig. 7.*]

4. ELECTION OF REMEDIES (§ 11*)-WHEN EX

ISTS.

Election exists where a party has alternative and inconsistent rights, and is determined by the choice, but a mistaken selection of a remedy that never existed and its fruitless prosecution until adjudged inapplicable does not prevent the exercise of another, if appropriate remedy, even if inconsistent with that first adopted.

[Ed. Note.-For other cases, see Election of Remedies, Cent. Dig. § 14; Dec. Dig. 11.*]

Report from Supreme Judicial Court, Cumberland County.

can it be held that a jury would not have 3. ELECTION OF REMEDIES (8 7*)-RELIEF been justified in finding that the plaintiff did ASKED. not reasonably believe the alleged represen-uitable title supposedly obtained by a sale on A bill in equity seeking to convert an eqtations, and did not rely upon them, and execution into a legal one does not seek subwas not induced by them to pay the $54, or stantially the same relief as scire facias to obsign the note, or both? To make the ques- tain an alias execution, so that the doctrine tion before us more concrete, assume that a jury had made a special finding that at the time the plaintiff signed the $800 note he did not believe the defendant's wool and sheep story, and was not induced thereby to sign the note, but signed it because he was personally interested to have the $1,000 paid, and thereby save the option, and expected the note could be paid from sales of stock: would such finding by a jury be sustainable in this case? We are constrained to the conclusion that it would. Patten did not testify that he believed and relied upon Field's representation about the wool and sheep. Why should he have believed and relied upon this representation on September 1st? was made to him in New York on August 8th, when Field gave him his worthless check, representing it to be good, and Patten had held that dishonored check for nearly a month as a constant reminder that Field was not only financially worthless, but had boldly falsified about the check. In the absence of any statement by Patten that he did believe and rely upon the wool and sheep story, that essential element of the case can only be found as an inference from Patten's act in signing the note. But we do not think that is the only inference that can be properly drawn therefrom. [5] When fair-minded and unprejudiced persons may reasonably differ in the conclusions to be drawn from undisputed facts, the question is one of fact for the jury.

It

For the reasons stated, it is the opinion of the court that the case should have been submitted to the jury.

Exceptions sustained.

(108 Me. 354)

MARSH BROS. & CO., Limited,
v. BELLEFLEUR.

(Supreme Judicial Court of Maine. Sépt. 30,
1911.)

1. EXECUTION (§ 99*)- ALIAS EXECUTION. SCOPE OF REMEDY.

Scire facias on a judgment to obtain an alias execution does not lie under Rev. St., C. 78, § 19, where upon the original execution real property has been sold and not levied upon by appraisement and set-off; but an amendment may be allowed, striking out the words pleading the statute.

[Ed. Note. For other cases, see Execution, Cent. Dig. §§ 1, 3; Dec. Dig. § 99.*]

2. SCIRE FACIAS ( 8*)-AMENDMENT OF WRIT. A writ of scire facias is amendable in the same manner as declarations in other cases. [Ed. Note. For other cases, see Scire Facias, Cent. Dig. § 18; Dec. Dig. § 8.*]

Scire facias by Marsh Brothers & Company, Limited, against Absolom C. Bellefleur, to obtain an alias execution. Defendant demurred, and case was reported. Demurrer sustained.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, BIRD, and HALEY, JJ.

Harry L. Cram, for plaintiff. Reynolds & Sanborn, for defendant.

BIRD, J. Scire facias to obtain an alias execution upon a judgment.

It appears from the writ that plaintiff corporation recovered judgment in the Supreme Judicial Court of Cumberland County on the 22d day of June, 1909, against the defendant for the sum of $892 damages and costs taxed at $16.70; that on the 26th day of June, 1909, plaintiff took out execution upon this judgment in due form of law; that a deputy of the sheriff of the county on the 17th day of July, 1909, by virtue of the execution, made a seizure and levy on certain real estate as the property of defendant and, after legal notice, sold the same on the 21st day of August at public auction to the plaintiff; that the execution was returned as fully satisfied; that on the 13th day of September, 1909, the plaintiff brought its bill in equity against said Absolom C. Bellefleur and Mabel Bellefleur, praying that the deed by which said Absolom had previously conveyed the real estate to said Mabel be decreed fraudulent and void; that, a hearing being had on said bill, answer, and replication, the court found the allegations of the complainant's bill, not admitted by the answer, had not been proved by evidence sufficient to warrant a dereal estate has not passed by the seizure, cree against defendants; that, whereas said levy, and sale and the judgment remains wholly unsatisfied and not reversed or an

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

nulled, the plaintiff is in danger of losing all | cannot be sustained. The doctrine of elecbenefit from its judgment. The writ directs tion of remedies does not apply. The bill defendant to show cause why an alias execu- in equity and the writ of scire facias do tion should not be issued on the judgment not seek substantially the same relief. The in accordance with the provisions of section former sought to convert an equitable title 19, of chapter 78 of the Revised Statutes. supposedly obtained by sale upon execution To plaintiff's writ defendant demurs upon into a legal title. In this the plaintiff failthe grounds following: ed. The execution remains in fact unsatisfied. The present suit seeks revival of the judgment and a new execution thereon. Fleming v. Courtenay, 95 Me. 135, 49 Atl. 614; Weeks v. Edwards, 176 Mass. 453, 57 N. E. 701. Moreover, the doctrine invoked as between proceedings at law and in equity, at least, relates only to original suits. Laraussini v. Carquette, 24 Miss. 151.

1. There is no authority or warrant either in statute or common law for the remedy by scire facias as invoked by the plaintiff, where property of a judgment debtor attached upon the original writ has been seized by a deputy sheriff and sold at public auction, as is alleged to have been done by the plaintiff in his writ.

2. If such authority or warrant is held to exist, the plaintiff has, by his election to pursue his remedy by bill in equity as alleged in his said writ, deprived himself of the right to any relief under, or benefit of, his action by scire facias.

[1] Upon the first ground, rejecting the words "or common law" as surplusage, the demurrer must be sustained. Scire facias does not lie under R. S. c. 78, § 19, where upon the original execution real property has been sold and not levied upon by appraisement and set-off. Piscataquis v. Kingsbury, 73 Me. 326, 331.

The plaintiff, after demurrer filed, moved the amendment of his writ by striking out the words "in accordance with the provisions of section 19, of chapter 78 of the Revised Statutes of Maine," and it is stipulated by the parties that, if the law court sustains the demurrer, it shall determine also if the writ is amendable, and, if so, if the proposed amendment may be allowed.

The cases cited by defendant (Hussey v. Bryant, 95 Me. 49, 49 Atl. 56; Jordan v. Haskell, 63 Me. 193; Marston v. Humphrey, 24 Me. 513), as well as Foss v. Whitehouse, 94 Me. 491, 48 Atl. 109, and Larrabee v. Lumbert, 34 Me. 79, are readily distinguishable from the facts in the case before us.

[4] In short, election exists when a party has alternative and inconsistent rights, and it is determined by a manifestation of choice. But the mistaken selection of a remedy that never existed and its fruitless prosecution until it is adjudged inapplicable does not prevent the exercise of another, if appropri ate, even if inconsistent with that first adopted. Snow v. Alley, 156 Mass. 193, 195, 30 N. E. 691; Barnsdall v. Waltemeyer, 142 Fed. 415, 420, 73 C. C. A. 515; note to Zimmerman v. Robinson & Co., 5 Am. & Eng. Ann. Cas. 962. See, also, Fleming v. Courtenay, 95 Me. 135, 49 Atl. 614; Weeks v. Edwards, 176 Mass. 453, 57 N. E. 701.

Demurrer sustained.

Amendment allowable on such terms as may be ordered at nisi prius.

(108 Me. 350)

SPROWL v. RANDELL.

OF APPEAL.

1911.)

[2] However formerly held, a writ of scire facias is unquestionably amendable in the same manner as declarations in other cases. 2 Tidd's Prac. (1st Am. Ed.) 1036, 1037; Foster on Scire Facias, 20, 349, 373, 375; Jackson v. Tanner, 18 Wend. (N. Y.) 526; Peacock v. People, 83 Ill. 331. Whether after plea of nul tiel record amendment may (Supreme Judicial Court of Maine. Sept. 30, be made is not necessary to be determined. It has been held that scire facias, being a 1. COURTS (§ 202*)-PROBATE COURTS-RIGHT judicial writ, shall not abate for want of form. (Foster on Scire Facias, 349); that errors in matter of form will not be noticed on general demurrer (McLellan v. Codman, 22 Me. 308); that a general demurrer cannot reach a defect in the prayer (Barton v. Vanzant, 1 Mo. 192); and that the court will give judgment according to law, and not according to the prayer of the plaintiff (Snowden v. State, 8 Mo. 483, 487). The defect which is the subject of the first ground of the special demurrer, being one of form, may be amended, R. S. c. 84, § 10. The proposed amendment is allowable. See Mitchell v. Chase, 87 Me. 172, 32 Atl. 867.

Neither Rev. St. c. 65, §§ 28-33, nor Rev. St. c. 89, § 7, gives a right of appeal to an executor or an administrator of one aggrieved in his lifetime by an order of a judge of probate. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 202.*]

2. COURTS (§ 202*) - PROBATE COURTS-APPEAL BY EXECUTOR OR ADMINISTRATOR.

Under Rev. St. c. 65, § 34, providing that any person claiming under an heir at law shall have the same rights as the heir in all proceedings in the probate court, including rights of appeal, an executor or administrator of a deceased heir at law has the same rights of appeal that the heir at law would have if liv ing.

[Ed. Note.-For other cases, see Courts, Dec. [3] Upon the second ground the demurrer Dig. § 202.*]

Me.)

SPROWL v. RANDELL

81

Exceptions from Supreme Judicial Court, | bate court is conferred by statute only, can Lincoln County.

Petition by Benjamin E. Sprowl against Charles L. Randell for leave to appeal from a decree admitting to probate an instrument as the will of Adelia E. Sprowl. Exceptions by defendant to a refusal to dismiss the petition having been overruled, Fred W. Sprowl, as administrator of Benjamin E. Sprowl, filed an appeal from the decree probating the will, and defendant moves to dismiss the appeal. Exceptions overruled.

Argued before SAVAGE, SPEAR, NISH, BIRD, and HALEY, JJ.

extend no further than the statute provides, and must be affirmatively alleged and established by the case presented. Abbott, Appellant, 97 Me. 278, 54 Atl. 755; Hayford v. Bangor, 103 Me. 434, 438, 69 Atl. 688; Briard v. Goodale, 86 Me. 100, 29 Atl. 946, 41 Am. St. Rep. 526; Pettingill v. Pettingill, 60 Me. 411, 419. In sections 28-33, c. 65, R. S., is found no provision for the taking of an appeal by an executor or administrator of a person aggrieved, and R. S. c. 89, § 7, proCOR-viding for the prosecution and defense by executor or administrator of certain actions

BIRD, J. This cause has already been before this court upon exceptions to the action of the supreme court of probate in overruling the motion of defendant to dismiss the petition of the present appellant's intestate for leave to enter an appeal from the decree of the judge of probate of Lincoln county admitting to probate the will of Adelia E. Sprowl (Sproul) whose heir at law intestate was. 107 Me. 274, 78 Atl. 450. Pending the consideration of the exceptions intestate died. The exceptions having been overruled by this court, the appellant filed his appeal and reasons of appeal in the probate court at its term held on the first Tuesday of December, 1910, returnable at the April term, 1911, of the supreme court of probate for said county. In the appeal he states that appellant was duly appointed administrator of the estate of Benjamin E. Sprowl, late of Waldoborough, deceased, and alleges that he as such administrator and as representing Benjamin E. Sprowl is aggrieved by the decree of the judge of probate allowing the will and appointing the appellee executor. Upon the entry of the appeal in the supreme court of probate, the appellee moved its dismissal for the following reasons: (1) Because neither said appeal nor reasons of appeal show any right of appeal, and are insufficient in law.

pending or commenced during the life of the testator or intestate, is, in the case of appeals, strictly limited to those which have been made. A petition for leave to enter an appeal, even if granted, cannot be held to be an appeal made or taken. In the case under consideration, the intestate, Benjamin E. Sprowl, was the person aggrieved, not his administrator.

[2] Has the appellant the right which he asserts under R. S. c. 65, § 34? This provision was originally enacted as follows: "Any person claiming under an heir at law shall have the same rights in all proceedings in probate courts, including rights of appeal, that the heir may have." Pub. Laws 1881, c. 90. The appellee apparently confines the application of this provision to the heirs of an heir at law, but we think the construction too narrow. As the real estate of a deceased person descends or passes to his heirs at law, so his personal assets descend or pass to his executor or administrator. Strout v. Lord, 103 Me. 410, 415, 69 Atl. 694; Hemmenway v. Lynde, 79 Me. 299, 301, 9 Atl. 620. They vest immediately in the executor or administrator (Dalton v. Dalton, 51 Me. 170, 172, 173). And it has been held that the administrator represents the person of his intestate in relation to his personal estate. M'Vaughters v. Elder, 2 Brev. (S. C.) 307, 313. Such being the case, the administrator is certainly as much one who claims under the heir at law as an assignee of the heir at law. Stilphen, Appellant, 100 Me. 146, 148, 60 Atl. 888. The interest of the deceased heir goes to his administrator, not to his heirs. Storer v. Blake, 31 Me. 289. If, under this provision, the heir (or his assignee) of the heir at law alone may appeal, the administrator who is in possession of and responsible for all the goods and chattels, rights, and credits of his intestate is without remedy, if the heir or his assignee re[1] The appellant claims that he has a fuses to act. As representatives of the same right of appeal under the general provi- estate, we should have the administrator sions found in R. S. c. 65, §§ 28-33, and prosecuting an appeal made by the deceased chapter 89, § 7, and, if not, that such right heir and an heir prosecuting another which is certainly his by virtue of R. S. c. 65, § 34. the deceased had not made. If success atWe must conclude that appellant has no tended the latter, the fruits of the appeal right of appeal under the general provisions would immediately pass to the administrator above referred to, either alone or in connec- of the deceased heir, and not to his successtion with R. S. c. 89, § 7. The right of ap- ful heir-the appellant. The administrator peal from any decree or order of the pro- is directly affected in his pecuniary interest, 81 A.-6

(2) Because neither said appeal nor reasons of appeal show that Fred W. Sprowl has any right of appeal.

(3) Because neither said appeal nor reasons of appeal show that said appeal was seasonably taken.

The appellee states the question really raised to be the construction of section 34 of chapter 65 of the Revised Statutes.