38 Vt. 653 | Vt. | 1866
The opinion of the court was delivered by
The first question presented by the bill of exceptions is, whether upon the facts it was necessary to make a demand for the property before bringing the suit. No demand is necessary where the evidence is sufficient to prove a conversion of the property, and as to a conversion of the property the court instructed the jury that if they should find that the defendant, Beals, did not get a title to the cattle in question by his purchase of Thomas, the act of Beals in driving them away, and keeping and exercising dominion over them as his own property, constituted a conversion, and no demand by the plaintiff was necessary in order to perfect a right of action. We think the ruling of the county court upon this branch of the case was correct, and substantially in accordance with the rule laid down in Riford v. Montgomery, 7 Vt. 411; in Grant v. King, 14 Vt. 367; and in Deering v. Austin, 34 Vt. 330, from which we do not feel at liberty to depart. The rule that the -purchase of property under such circumstances, and holding possession as owner under such purchase, is-of itself a conversion of the property and subjects such purchaser to an action without demand or notice, though harsh when applied to an innocent purchaser, does not in general deprive him of the right, after the suit is commenced, to surrender the property taken, in satisfaction or mitigation of damages. It would seem to be a well settled rule in the English courts in actions of trover and trespass de bonis mportatis that when the taking was not wilful,'and the property is not materially injured, and is surrendered back to the real owner, the plaintiff will, on payment of the costs, be compelled to proceed at his
2. It is insisted by the defendant’s counsel that the county court erred in not charging the jury in accordance with the defendant’s third request. Upon the evidence referred to in that request two grounds of defence were alleged: 1st, the authority of Thomas to sell the cattle to Beals, and, 2nd, that the plaintiff, by his declarations and acts, was estopped from setting up title to the property in question. The defendant’s testimony tended to show that sundry persons at different times, while Thomas was in possession of and carrying on the farm, went there for the purpose of purchasing cattle, butter, cheese and other products of the farm, and that the plaintiff told them in substance that Thomas did the trading, and that any trade they might make with him would be satisfactory to the plaintiff. And the defendant’s testimony also tended to show that Thomas
3. It is urged by the defendant that the county court improperly admitted evidence of the declarations of Thomas in relation to the ownership ‘ of the property. The declarations or admissions of Thomas, admitted in evidence, were made by him while in possession of the farm and stock, and they relate only to the relation Thomas sustained to the property in question. Beals claimed to have derived his title from Thomas, and, in respect to the sale, Thomas and Bedls stood in the relation of vendor and vendee of the property. The evidence was admissible upon the question of title as against Thomas, and, upon the same principle, it was admissible as against his vendee, Beals. The admissions came from a privy in estate, in contemplation of law ; they came from the party himself and are not hearsay evidence. It appears that the court limited the evidence of Thomas’ admissions to the legitimate purpose for which it was admissible, and for the purpose of precluding any improper use or effect of it by the jury, the court told the jury that the testimony as to Thomas’ sayings while he was in possession of the property under his contract and arrangement with the plaintiff, bore only on the question of the relation that Thomas sustained to the property, whether that of owner as tenant in common, or that which the plain
The judgment is affirmed.