Brownell v. Talcott

47 Vt. 243 | Vt. | 1875

The opinion of the court was delivered by

Redfield, J.

This action is trover for the conversion of a wagon. The plaintiff bought certain personal property of Charles Thompson (under whom defendant claims title), paid him $150 in money, and gave his note for $75, and claimed that his purchase included the wagon. Thompson denied that he sold the wagon. Plaintiff admitted that the note should have been for $100 instead of $75, but claims that it was written by defendant, and that he signed it without reading, or knowing its tenor, supposing it to have been for $100. Afterwards plaintiff demanded the wagon, and brought a suit in trover for its conversion ; and when the writ was being served, Thompson consented to plaintiff’s claim, took plaintiff’s note for $100 in lieu of the $75 note, and agreed that the wagon was sold to the plaintiff. Plaintiff then demanded the wagon of the defendant, who had it in possession, and on his refusal, brought this suit. The defendant, standing in Thompson’s place, claims that the exchange of notes and consent that the wagon should be included in the sale to the plaintiff, was induced by menace and duress of imprisonment, and under the charge of the court, this fact has been found by the jury.

I. The court charged the jury, that “ if the plaintiff sued out the writ against Thompson, maliciously, without cause, knowing that he had no claim — knowing that he had not purchased the property — but instituted this proceeding for the purpose of frightening and coercing Thompson, then, notwithstanding the legality of the form of the proceeding, the whole thing was illegal and irregular, and such as he had no right to instituteand, “ that the plaintiff was not entitled to recover by force of what transpired on the 19th December, between Thompson and the plaintiff, provided the jury found that the transaction was brought about by the plaintiff, maliciously, and in bad faith, and without cause, in the manner before indicated.” There would seem no reason for the plaintiff to charge fault in this charge. If the plaintiff, knowing that he had not bought the wagon, uses legal process maliciously, for the mere purpose of coercing a party to an agreement which otherwise could not have his consent, such contract is without force. The law strips a party thus abusing its process, of all protection under it, and leaves him to answer for his sins as a naked wrong-doer. There may be reason to think that Thompson was easily coerced, and that a man of ordinary nerve and stability would not have consented to a contract against his will, and to his prejudice, under these circumstances; but the jury have found under proper instructions, as we think, that a man of ordinary sagacity and firmness would have succumbed. We find no error in law in this part of the case.

II. The plaintiff requested the court to charge, that this defence would not avail the defendant, unless the defendant had offered to rescind the contract by an exchange of the notes. The contract of purchase now in question, was effected on the 19th of December, and on the next day defendant notified the plaintiff that the wagon would not be surrendered, and that Thompson repudiated the pretended purchase of the wagon on the 19th, and on the same day plaintiff demanded the wagon, and relies solely on that demand as evidence of the conversion. There is no evidence that Thompson has made the §100 note his own, by any attempt to collect or negotiate it: his notice to the plaintiff was, in effect, that he repudiated all but $75.00 of the plaintiff’s note, and was ready to exchange it for the $75.00 note in plaintiff’s hands ; and the case does not disclose but that Thompson has ever been ready to do this. The plaintiff took the initiative, and based his suit on the fact that defendant, by the refusal to deliver the wagon on the 20th December, had converted it tortiously; and the question thus raised is, whether the plaintiff was owner of the wagon at the time of the demand. The plaintiff had notice that Thompson repudiated the pretended sale ; and the jury have found that the sale was invalid, and the repudiation rightful. If Thompson had refused to exchange the notes, he would have affirmed the sale. But he is not in the wrong (being willing, at all times, to exchange the notes,) in holding the $100 note until the plaintiff shall deliver his note for $75 to Thompson, in lieu of the larger note in his hands. The duty of Thompson to surrender the $100 note to the plaintiff is not absolute, but conditional.

We think that the plaintiff, on the facts found by the jury, was not such absolute owner of the wagon, that withholding possession was a tortious conversion of the property. And there is no fact stated in the exceptions whereby Thompson has affirmed the sale of the wagon. Watkins v. Baird, 6 Mass. 506; Hodgden v. Hubbard, 18 Vt. 507; Foshay v. Ferguson, 6 Hill, 157.

Judgment affirmed.