(122 A.) "Q. Did he come? A. No, sir. "Q. Did he ever come? A. No, sir. "Q. Did he ever sign that agreement? No, sir." He said, 'I don't know.' Mr. J. Benjamin Mat- | that Mr. Digges and others, purchasers of tingly said, 'But you promised to do this for the property at the mortgage sale, gave to J. nothing.'* Mr. Francis E. Mattingly Benjamin Mattingly the right to purchase, said, 'Benny, I'm not charging you anything, or sell it to another upon the terms stated, but I want expenses for coming up here.' I pro- within one year from the date of sale; and posed that they meet again at my office, and in the exercise of that right he was not only Mr. Francis E. Mattingly promised to come allowed to remain in possession of the propagain on Wednesday. erty, but he paid to the vendors the interest on the indebtedness against the property, as A. well as the taxes and insurance thereon, to the time of its sale by him to the Brightwood Sanitarium Company, when possession of the property was given to it. Thereafter the interest, taxes, and insurance were by said company paid to and received by Mr. Digges and others in recognition of the said optional right given by them to J. Benjamin Mattingly. And, although the written option to purchase the property was thereafter given in the name of Francis E. Mattingly, the terms contained therein were those that had been fixed and established by J. Benjamin Mattingly at the meeting with Mr. Walker and Francis E. Mattingly in February, and a part of the consideration named in the option was the amount paid by the Sanitarium Company in part payment of the purchase money under the sale made to it by J. Benjamin Mattingly months before the execution of the option. Thereafter all other payments on the purchase money were made with money received from the Brightwood Sanitarium Company under the sale made to it. W. Mitchell Digges, who, it seems, acted for the purchasers in the resale of the property bought by them at the mortgage sale, testified that J. Benjamin Mattingly tried to sell the property to a number of persons, but it was not sold until 1919, "and then he sold it to the Brightwood Sanitarium Company." In 1919 he met Mr. Walker in Washington. Mr. Francis E. Mattingly was present. The terms of the sale to the Sanitarium Company were discussed, and it was agreed that $1,000 were to be paid on January 1, 1920, but the agreement was not reduced to writing. At that time there was 9 months' interest due on the Eastern Shore Trust Company's judgment. A check for $202 was given to him by Walker and the balance was to be paid in January following. Francis E. Mattingly in his evidence denied that he went to his brother in relation to the sale of the property, but stated his brother came to him in "dire need"; but nowhere does he deny in specific terms the statement of his brother and others that he was not to charge for his services. He stated that he loaned his brother $200 to enable him to pay interest on debts that were liens on the Laurel property, and that he also paid insurance thereon that he could recall, amounting to $51. The evidence also shows that, although the option from Mr. Digges and others was taken in the name of Francis E. Mattingly, and the option to the Brightwood Sanitarium Company was signed by him, he nevertheless was aeting therein for and on behalf of his brother, Benjamin, and for his benefit, and consequently the profit, if any, accruing In speaking of the option agreement to from the purchase and sale of the property him and the one from him to the Sanitarium belonged to William E. Mattingly, as assignee Company he said "it was a simultaneous of his brother, subject to any money paid transaction;" that "it was up to him to see or advanced by Francis E. Mattingly for authat these gentlemen complied with the thorized or needed expenses and advanceterms of the transaction;" that Mitchell & ments growing out of and immediately conDigges held him responsible for the perform- nected with the transaction, but not subject ance of the terms of the agreement. When to compensation for services rendered by asked about his refusal to sign the paper him, or for money owing to him by his brothwriting prepared by Mr. Johnson, he said heer, not growing out of and immediately con"read the paper, and asked, 'When did this nected with the transaction. And in so holdhappen?" and refused to sign it. That was ing we do not, upon the facts of this case, all, it seems, he said concerning it on that in any way infringe upon any rule of law occasion. Later on the same day he saw his as to resulting trusts laid down in Dorsey v. brother at the Atlantic Hotel in Washington, Clarke, 4 H. & J. 556; Cecil Bank v. Snively, and in discussing the transaction with him | 23 Md. 253; Giese v. Parkendorf, 137 Md. said he would sign nothing until he had con- 675, 112 Atl. 3; Dixon v. Dixon, 123 Md. sulted with his attorney at La Plata. Upon 44, 90 Atl. 846, Ann. Cas. 1915D, 616; and cross-examination he was asked the direct other cases. question: "Was it for his [J. Benjamin Matingly's] profit that you took this option, or for your own? A. It is not true; if you say I took it for my own profit you are doing me an injustice. I entered into the whole transaction solely for his benefit." [3] It is said in 40 Cyc. p. 2812, where services are rendered with the understanding that they are to be gratuitous, the law does not raise an implied promise to pay therefor, no matter how valuable the services may be; and in the note thereto it is stated, [2] It is fully shown from the evidence where the services are performed or use KIMBALL v. THOMPSON et al. 1923.). 1. Replevin 73, 128-Damages for replevied goods recoverable in replevin suit or in action on replevin bond. Damages for replevied goods may be recovered for the taking and detention in the replevin suit under Rev. St. c. 101, § 15, or they may be determined in a suit on the replevin bond. 2. Replevin 124 (3)—Elements of recovery in action on replevin bond stated. given by one person to another with the intent that no charge shall be made therefor, and is accepted on that theory, the one furnishing the services or use cannot subse- (Supreme Judicial Court of Maine. Aug. 27, quently, upon changing his mind, recover therefor. And it is also stated in 28 Ruling Case Law, 670, that no binding promise to make compensation for personal services can be implied or inferred in favor of one person against another, unless the party furnishing the services then expected, or had reason to expect, compensation, from the other party. Assumpsit cannot be based on a spontaneous and unasked service, rendered through kindness or other motive, and not to be accounted for on the theory of an expectation of payment. This is but the corollary of the general principle in the law of contracts that all contracts must be good or bad in their original creation, and must not depend on sub-market value; if the goods are restored in sequent contingencies. Liability for services cannot hinge on whether the party chooses at a future date to make them a gift or a charge. Thus, where a person renders services under an express assurance that he will make no charge, he cannot recover therefor on the ground that he would have made a charge had he not believed that another agreement between the parties would have been carried out. [4] There is found in the record some evidence of the fact that Francis E. Mattingly paid for his brother, Benjamin, taxes and insurance on property of the latter, but whether it was upon the property here involved, or was paid in connection with the transaction mentioned, or whether it was repaid to him, is not shown. There is also evidence that Francis E. Mattingly paid for his brother, Benjamin, interest on the indebtedness against the Laurel property, and that he paid, or was responsible for the payment of, certain counsel fees to Hamilton & Hamilton, attorneys of Washington, D. C.; but it is not shown that these payments were made in connection with the transaction wherein he was acting for his brother, J. Benjamin Mattingly. In respect to the counsel fees mentioned, J. Benjamin Mattingly testified that the attorneys named represented Francis E. Mattingly and Messrs. Mitchell & Digges. In view of what we have said, we will reverse the decree appealed from, and remand the case, in order that evidence may be taken, if desired, showing the amount of money, if any, paid or advanced by Francis E. Mattingly for authorized or needed expenses and advancements growing out of and immediately connected with the aforesaid transaction with his brother, and that an order may be passed in conformity with this opinion. Decree reversed, and-, cause remanded; the costs in this court to be paid by Francis E. Mattingly; the costs in the lower court to await the final decision therein. In an action on a replevin bond, if the goods are restored in perfect condition the plaintiff in replevin may recover damages for taking, detention, and costs, and the loss in a damaged condition, plaintiff may recover the amount of the depreciation, whether caused by goods are not returned, plaintiff may recover deterioration or by market conditions; if the the value of the property in good condition at, the date of the judgment in the replevin suit, and in addition the depreciation, if any, in market value between the time of taking and the date of the judgment. 3. Replevin 124 (2)-Attorney's fees not recoverable as costs in suit on bond; "damages that defendant shall recover." In an action on a replevin bond, though the bond stipulated for the payment of "such damages and costs as the defendant shall recover," the plaintiff is not entitled to recover counsel fees, since the phrase "damages that defendant shall recover," under Rev. St. c. 101, § 11, clearly means "damages for the taking" recoverable by the defendant in the replevin suit, in which counsel fees are not recoverable, nor may such fees be recovered under sections 13, 18. 4. Evidence 265 (7)-In action on bond, estimate of value in replevin writ held prima facie correct as against defendant. In an action on a replevin bond, the estimate of value stated in the replevin writ is prima facie correct as against the defendant in this action, but is not evidence against the plaintiff, who had no voice in making such estimate. 5. Replevin 124(2)—Expense of caring for cattle replevied cannot be deducted from damages recovered in action on replevin bond. The owner of property taken by replevin is not liable for the expense of keeping it during the period of detention, and hence, in an action on a replevin bond, the defendant is not entitled to have deducted from the amount of damages the expense of feeding the cattle replevied during such detention. 6. Replevin 124(4)—In action on replevin bond, defense that depreciation was due to freezing or decay not available. Though it is the rule that a defendant in suit on replevin bond may defend on the ground that the replevied property was destroyed by (122 A.) inevitable cause without his fault, it can only 33 Me. 387; Thomas v. Spofford, 46 Me. 411; be made in a clear case of vis major, and de- Washington Ice Co. v. Webster, 62 Me. 363, preciation caused by freezing or decay is not 16 Am. Rep. 462. within the rule. 7. Replevin Special or actual damage may be proved; e., damage caused by loss of profitable use. Washington Ice Co. v. Webster, supra; Stevens v. Tuite, 104 Mass. 335. 124(1)—Where damages award-i. ed are final and full, judgment for penal sum of bond will not be given. In an action on a replevin bond, where the damages allowed are full and final, there is no occasion to give judgment for the penal sum of the bond, Rev. St. c. 87, § 51, providing for judgments for the penal sum of bonds not being applicable. Report from Supreme Judicial Court, Somerset County, at Law. Suit on replevin bond by Gustave A. Kimball against Frank O. Thompson and others. Judgment for plaintiff. Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, MORRILL, and DEASY, JJ. H. R. Coolidge, of Pittsfield, for plaintiff. L. L. Walton, of Skowhegan, for defendants. DEASY, J. On November 15, 1921, the defendant Thompson, having claims by mortgage upon personal property which the plaintiff, a deputy sheriff, had attached in suits against the mortgagors, replevied the attached property. The property consisted of 13 head of cattle, one automobile and a quantity of potatoes. The replevin suit was tried at the April term, 1922. A nonsuit and return of the property were ordered. After its return, the suits of the attaching creditors having gone to judgment, the property returned was sold on execution. The net proceeds of such sale was but a small fraction of the amount of the judgments. The instant suit is an action of debt on the replevin bond. The breach is not questioned. The only dispute relates to the amount of damages recoverable. The parties do not agree as to the measure of such damages, and the evidence bearing upon it is in conflict. The bond is in the form prescribed by law. Statutes of 1821, c. 63. By its terms it is to be void if the obligor does three things: (1) Prosecutes the suit to final judgment. This has been done. (2) Pays damages and costs. (3) Returns and restores "the same goods and chattels in like good order and condition as when taken." If no such loss is shown, the damage recoverable may be measured by "interest on the value of the property from the time when it was taken." Smith v. Dillingham, supra; Washington Ice Co. v. Webster, supra. Another element of damage recoverable is loss caused by decline in market value. Such loss the plaintiff in replevin must bear. Washington Ice Co. v. Webster, supra. If the replevied property is returned "in like good order and condition as when taken," the foregoing are the only elements of damage. If, however, the property is restored in a damaged condition or not returned at all, further recovery may be had. Berry v. Hoeffner, 56 Me. 170; Tucker v. Trust Co., 242 Mass. 25, 136 N. E. 62. When in such case the property is returned, the plaintiff is entitled to recover the amount of its depreciation between the taking and the return, whether caused by deterioration or market conditions. If not returned, the plaintiff recovers the value of the property in assumed good condition at the date of judgment in the replevin suit. And in addition the depreciation, if any, in market value between the time of taking and the said date of judgment. Maguire v. Amusement Co., 205 Mass. 73, 91 N. E. 135, 137 Am. St. Rep. 422. 18 Ann. Cas. 110. Thus the defeated defendant in replevin having, not tortiously indeed, but in a broad sense wrongfully, intermeddled with the plaintiff's possession, loses by decline, but does not gain through increase in the market value of the property. [3] The plaintiff claims also the right to recover in this action counsel fees incurred both in the replevin suit and in the action on the bond. But the statute does not contemplate such recovery. The statutory form of bond does not so provide. It stipulates for the payment of "such damages and costs as the defendant shall recover." The term "costs" does not include counsel fees. Burrage v. Bristol, 210 Mass. 299, 96 N. E. 719. The phrase "damages that the defendant shall recover" does not include such fees. It clearly means "damages for the taking" recoverable by the defendant in the replevin suit. R. S. c. 101, § 11. Counsel fees are no more recoverable in a replevin suit than in a suit on a promissory note. [1, 2] Even if the replevied goods are returned in perfect condition, the plaintiff is entitled to recover damages for the taking, detention, and costs. The amount of damages for taking and detention may be assessed in the replevin suit. R. S. c. 101, § 15. R. S. c. 101, § 13, does not authorize reIf, as in this case, it is not so done, such covery of counsel fees. That section relates damages may be determined and recovered to the application of money that has been rein a suit on the bond. Smith v. Dillingham, covered. It does not go into operation in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes any given case until after recovery. It regulates the settlement between the officer and the execution creditor. It does not apply to the relation between officer and obligor. [5] But the defendants say that from this should be deducted the expense of feeding and caring for the stock when held on the replev. in writ. This deduction cannot legally be Section 18 does not authorize such recov- made. When property is taken in replevin ery. This section grants no new rights. It to which, as it turns out, the defendant has provides simply that existing remedies on the right of possession, no tort has been comthe replevin bond shall remain in force, not-mitted. withstanding an unavailing resort to writs of return and reprisal. See Maguire v. Amusement Co., supra; Firestone v. Ætna Co., 67 Misc. Rep. 443, 123 N. Y. Supp. 107. [4] Turning now from general principles to the case at bar: In the replevin writ the property is valued at $1,500. This estimate as against Thompson is prima facie correct. Barnes v. Bartlett, 15 Pick. (Mass.) 79. But it is not evidence against the plaintiff Kim-tached for B's debt. ball, for he had no voice or part in making the estimate. Thomas v. Spofford, supra; Kafer v. Harlow, 5 Allen (Mass.) 348; Caldwell v. West, 21 N. J. Law, 411. The evidence, especially that relating to the quantity of merchantable potatoes taken in November and the condition of those returned in April, is conflicting and unconvincing. It would be unprofitable to extend this opinion by an analysis of the testimony. Upon the whole we think that the property taken was at the time of taking worth $1,750. This indeed seems to have been Thompson's final estimate, for when required to give bond in double the value of the property to be replevied he made his bond in the penal sum of $3,500. This figure is also fair to the plaintiff. What was the value of the property 'when returned? About 10 days after its return, the property, having been seized on execution, was sold at public auction. The return shows that the expense of keeping and selling the property exceeded the gross receipts of the sale. But to reach this result there was included $37.50 received for 3 cows sold at auction but which were not replevied. On the other side of the account is a charge of $252.45 for care of these 3 cows. Making the necessary correction, the net proceeds of the sale of the property which had been replevied and returned was $176.26. This was the result of a public sale of which due notice was given and which the defendants had an opportunity to attend. The amount received may fairly be taken as at least prima facie evidence of the value of the property when returned. The difference between $1,750, the value of the property taken, and $176,26, the value when returned, is the amount of depreciation for which the defendant is responsible. The difference is $1,573.74. The proceeding is not tortious because under legal process. But the owner's property has been taken away from him against his will and detained without his consent. Under such circumstances it would be unjust and illogical to compel him to pay for its care and keeping. This is entirely unlike the case of the attachment of A.'s property for A.'s debt; it is more nearly analagous to the case where A.'s property is at [6] Again, it is claimed that so far as the depreciation was the result of the freezing or decaying of potatoes it was inevitable, without fault on the part of the defendant, and for this he should not be held responsible. It is true that it has been held in this jurisdiction that a defendant in a suit on a replevin bond may defend on the ground that the replevied property was destroyed by inevitable causes and without his fault. Melvin v. Winslow, 10 Me. 397; Walker v. Osgood, 53 Me. 423. These cases seem to be opposed to the weight of authority in other jurisdictions. 23 R. C. L. p. 906. Without now questioning the rule as established by these Maine cases, we hold that he who would invoke it must make out a clear case of vis major. The evidence does not show the case to be within the rule. The depreciation as above stated is $1,573.74. To this should be added damages for detention. No special damage from loss of use having been shown, the interest on the value from the taking to the return may be adopted as the measure. This is $45.54. There must be added $12.39, the costs of the replevin suit. The total is $1,633.67. Interest should be allowed on $1,573.74 from the date of return, April 28, 1922, and on $12.39 from the date of judgment in the replevin suit. [7] Following the reasoning of Peters, C. J., in Corson v. Dunlap, 83 Me. 35, 21 Atl. 173, 12 L. R. A. 90, we hold that R. S. c. 87 § 51, does not apply. The damages recovered in this case being full and final, there is no occasion to have judgment entered for the penal sum of the bond. Judgment for plaintiff for $1,633.67, with interest on $1,573.74 from April 28, 1922, and on $12.39 from date of judgment in replevin suit. (122 A.) SHAWMUT MFG. CO. v. INHABITANTS OF BENTON. 9. Taxation 485(1)—Burden on one seeking abatement of taxes. On application for abatement of taxes, the obligation of showing adequate reason there (Supreme Judicial Court of Maine. Aug. 30, for is on the applicant, and he must prove 1923.) enough at least to make a prima facie case. 1. Towns 4-Cannot enlarge extent or tax- 10. Taxation ing jurisdictions by prescription. Towns are without power to alter their boundary lines and cannot enlarge their extents or taxing jurisdictions by prescription, however extended in time. 2. Statutes 218-Contemporaneous and subsequent interpretation may aid in construing town charter. If uncertainty attaches to meaning of town's charter, contemporaneous and subsequent interpretation by those in interest may aid in construing it. 3. Towns 4-Erroneous recognition of location of boundary line cannot change line established by charter. Erroneous recognition of location of town's boundary line, notwithstanding universal but mistaken supposition that accepted line is the right one, cannot be superior to act incorporating the town. 4. Towns 485 (2)-That valuation of property in previous years was less inadmissible and of no weight. On question whether property has been overvalued for purpose of taxation, the fact that official valuation for previous years was of less amount is inadmissible and of no weight. 11. Taxation ~64-Water power not taxable as such. Water power in and of itself is not taxable, as riparian proprietor has no property in the water, but only right of interrupting and using it for needed and useful industries and otherwise, without prejudice to rights of others. 12. Taxation 445-Assessment of "privilege water right" against owner of dam held not to assess water power. Assessment of that part of "privilege water right" and dam in town extending to middle of the stream did not use the quoted words as meaning water power, but as covering the unoccupied site by the dam with its potential pos4-Legislature in setting apart sibilities attributable to its advantageous posinew town could change boundary. That river bank constituted boundary of town from which new town was set apart is not conclusive that it is likewise boundary of the new town, as Legislature may establish and change town boundaries at will. tion. 13. Constitutional law 229(3), 284(1)— Taxation 40 (8)-System of valuation designed to operate unequally would violate Constitution. Adoption by assessors of system of valuation designed to operate unequally would violate Const. Me. art. 9, § 1, relative to oath of office, section 8 requiring taxes to be apportioned and assessed equally according to value 5. Towns 4-Center of river held boundary. 6. Waters and water courses 89-Thread of line. Ordinarily, when stream above tide, and therefore not technically navigable, constitutes boundary line of incorporated territory, the thread of the stream is the true boundary line. 7. Waters and water courses 89-Lines of riparian proprietor ordinarily extend to include one-half of bed of stream. By implication of law, in absence of negativing words, side lines of riparian proprietor whose estate is bounded by innavigable river are extended at right angles from the stream to include one-half of its bed, and description as on the stream carries likewise. 8. Taxation 459-One seeking abatement must show he is "overrated." One seeking abatement of taxes when liable to assessment must show that he was "overrated" in sense of overestimation or rating of property above its true value. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Overrate.] 14. Taxation 40(1)-Fair and equitable distribution in proportion to property required. The principle of equality in taxation is cardinal, and requires fair and equitable distribution so that each taxpayer shall contribute in proportion to his property. 15. Taxation 459-Taxpayer entitled to redress if property assessed excessively, or if other property assessed too low and his own at its true value. Taxpayer is wronged and entitled to redress if assessed on an excessive valuation, or if taxed on basis of just value of his property while by scheme of taxing officers other property, in like situation, is assessed at less than its just value. 16. Taxation 485(3)-Proof of error of judgment will not support claim of overrating. Proof of mere error of judgment by taxing authorities in valuing property will not support claim of overrating. 17. Taxation 485 (3)—Evidence held insufficient to show other property assessed at lower percentage of value than petitioner's. Opinion of witness, based on information as to selling price of 14 lots, that property was For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 122 A.-4 |