Burditt Bros. v. Howe

69 Vt. 563 | Vt. | 1897

Taft, J.

It is argued by defendant’s counsel that the parol testimony covered by the exceptions to the report was not admissible for that “the correspondence of Bigelow (the plaintiffs agent) and Moore constitute a complete contract in writing.”

It is evident that a part of the contract rested in parol, viz: that a bill of lading was to accompany the draft and that the title to the flour was not to pass until the draft was paid. This made the parol testimony admissible and' the exceptions to the report are overruled. Winn v, Chamberlin, 32 Vt. 320; Reynolds v. Hassam, 56 Vt. 449, That the title would not pass, was the legal effect of the draft and bill of lading. Tilden v. Minor, 45 Vt. 196. The title of the flour not having passed to Moore it cannot be held on the attachment against him and the plaintiffs are entitled to recover. The question of stoppage in transitu becomes immaterial.

The pro forma judgment reversed, the defendant's exceptions to the report overruled, and judgment renderedfor theplaintiffs.