96 Vt. 160 | Vt. | 1923
This is an action of tort for the conversion of a carload of potatoes. The case was tried by court, facts were found, and judgment thereon was rendered for the plaintiffs.
Upon learning that the defendant would not purchase the potatoes, Grice endeavored to change the shipment orders, but failed to accomplish that result. Accompanied by Roy E. Perry, who was interested in the potatoes, Grice went to Springfield, Massachusetts, and there on February 5, 1917, sold the four carloads of potatoes to the plaintiffs. After that Grice and Perry went on to Waterbury, Connecticut, where they sold other potatoes, after which they returned to Springfield, Massachusetts, where they learned that Grice had failed to divert the shipment of potatoes from their original destination, and that they had been set off upon the defendant’s siding at Keene, New Hampshire. On February 10, 1917, Grice, Perry, and Bondi went to Keene, New Hampshire. A Mr. Simpson, manager of the produce department of the defendant, met them there, and together they examined the potatoes. Simpson then informed them that the defendant had attached the potatoes in a suit against the New Brunswick Potato Exchange, Limited; but- the officer’s return shows that the attachment was not made until February 12, 1917, and the court has found in accordance with the officer’s return.
The bill with the draft attached was sent on to the bank in Richford, Vermont, for. collection. Grice being out of the State at the time, the draft was not promptly paid, and it was some
Eighteen exceptions were taken and reserved by the defendant, twelve of which were to findings of fact by the court, five
The first question raised by the defendant to the judg ment below is, that the plaintiffs have not shown sufficient title to the potatoes to enable them to maintain this action. The principal transactions upon which the plaintiffs base their action, occurred in Ganada, hence the legal effect of those transactions is to be determined by the law of that country. This is conceded by both parties. As has been repeatedly held in this State, a foreign law is a question of fact and must be proved as such; but from this it does not follow that the court is not to construe foreign statutes and judicial decisions when the witness produced to prove the foreign law testifies, that the law sought to be proved is contained- in such judicial decisions or statutes of the foreign country, and when there is no conflict in such decisions or statutes, and when there is no unascertained facts necessary for their construction. The construction is for the court in such cases, and this is-.in no sense in conflict with the rule that a foreign law is'a question of fact and is to be proved as such. In’ such eases the fact proved is, that the law of the foreign country is contained in certain statutes or judicial decisions or both,
In Bradley v. Benton, 85 Vt. 412, 417, 82 Atl. 669, it is said that the tendency of the judicial decisions introduced in that case was a question' for the court, and not at all for the jury, there being no conflict among them, and no unascertained facts necessary to their construction. In Alexander v. Pennsylvania Company, 48 Ohio State 623, 30 N. E. 69, one of the cases cited in the Bradley case, it is said that to submit the examination or construction of judicial decisions to a jury would be little better than the cast of a die. In Tarbell v. Grand Trunk Ry. Co., 96 Vt. 170, the rule is so fully stated that further discussion seems unnecessary.
The only witness testifying to the law of Canada was Edson Grenfell Place, an attorney from Canada. His testimony covered much that is unimportant in determining the substantial questions affected by the Canadian law, especially is that true respecting his testimony relating to the procedure in the Canadian court. He testified that the law of Canada respecting bills of lading, their indorsement and transfer, is contained in chapter 118 of the Revised Statutes of Canada, and in Article 1740 to 1748, inclusive, of the Civil Code of Canada, and in the case of Gosselin v. Ontario Bank, 36 Supreme Court of Canada Reports, 406, and in the Statutes Dominion of Canada, 3 and 4, Geo. V. ch. 9, § 86. The court found in accordance therewith. Therefore, what the law of Canada material to the issues in this case is, depends upon the construction of these authorities.
Section 2 of Chapter 118 of the Revised Statutes of Canada, 1906, is the section here material, and such of that section as is material is as follows: ‘ ‘ Every * * * indorsee of a bill of lading to whom the property in the goods therein mentioned passes upon or by reason of such * # # # # indorsement shall have and be vested with all the rights of action and be subject to all such liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself. ’ ’ By section 1745 of the Civil Code of Lower Canada, bills of lading authorizing its possessor to transfer or receive goods thereby repre
The statutes and decision, construed together, clearly show that Grice became vested with an interest in the potatoes upon his purchase of them from the New Brunswick Potato Exchange, Limited, with the right to their possession upon payment of the unpaid balance, leaving in the exchange the right to their possession until such payment was made. When the bill of lading was indorsed to the Royal Bank of Canada, the Potato Exchange was left with no interest, right, or title in those potatoes, and the title to them then rested in Grice and the Royal Bank. When Grice sold them to the plaintiffs, the title was then in' the plaintiffs and the bank, and the' indorsement of the bill of lading to the plaintiffs by the bank, nothing further appearing, the entire right and title to the potatoes passed to the plaintiffs with the right of immediate possession thereof.
The plaintiffs ’ title to the potatoes was thus established, and the conceded fact that the defendant attached them under a claim of right, made out a prima facie ease for the plaintiffs.
The defendant' attempts to meet this case by showing that, though the Potato Exchange became divested of all right and title to the potatoes when the bill of lading was indorsed to the
The defendant’s contention that the plaintiffs were without sufficient title to maintain the action, is based upon the finding of the court as follows: “If Bondi Brothers had notice at the time of the transfer to them of the bill of lading that the potatoes represented by it were no longer actually in the possession of the carrier, Bondi Brothers would not then be entitled to treat the bill of lading as an absolute document of title.” This finding, in connection with the defendant’s claim that it had the right to attach the potatoes because the Potato Exchange had an attachable interest in them, in the light of our construction of the Canadian law, means no more than that the transfer of the bill of lading to the plaintiffs was subject to such legal rights as the defendant then had under its attachment. The actual possession of the potatoes was only notice to the plaintiffs of the defendant’s claim of right to attach the potatoes; and, while the plaintiffs took the assignment of the bill of lading with notice that the defendant had attached the potatoes covered by the bill, such notice could affect the plaintiff, only in case the New Brunswick Potato Exchange, Limited, had an attachable interest in them at the time of the attachment, and this the defendant had failed to show.
The third and fourth points made in the defendant’s brief relate to the procedure in the Canadian courts in cases like the one in hand. The law is too well settled in this State, as well as elsewhere, that the procedure is governed by the law of the forum, to require citation of authorities or comment.
The fifth point made in the defendant’s brief was to the admission of oral proof of the sale of the potatoes by Grice to the plaintiffs. The ground of the exception was that Grice was not the owner of the potatoes at the time of the sale and that the evidence was immaterial and irrelevant. We have seen,
The remaining exceptions relate to the findings of fact and refusal to find as requested. Exceptions 13 to 17, inclusive, are inadequately briefed, and so are not considered. Upon examination of the transcript and the depositions, we find substantial evidence supporting the essential facts found to which exceptions 1, 3, 5, 7, and 10 are taken. Exceptions 6 and 9 are disposed of by what we have already said respecting the charge of the draft by the Royal Bank of Ganada, to the Potato Exchange, when the same was returned to the bank from Richford, and respecting the defendant’s claim that the charge amounted to payment of the draft by the Potato Exchange. Requests 2, 4, and 8 were substantially complied with, so far as the same is supported by the evidence and are material to any issue in the case.
We find no error in the judgment below and the same is affirmed.