Burnell v. Marvin

44 Vt. 277 | Vt. | 1872

The opinion of the court was delivered by

Redfield, J.

This action is trover for a wagon. The plaintiff sold the wagon, conditionally, to J. A. Potwin, August 14,1861: reserving the property in himself until the purchase-money — $90 —was paid. A contract stipulating for the payment in instal-ments and containing the conditions, was executed by Potwin to the plaintiff at that date. Potwin never paid any portion of the purchase-money. In December, 1861, plaintiff sold his right and ■interest in the wagon to one Assinault, who paid him therefor $90. The defendant, as constable of Swanton, attached the wagon on regular process in the fall of 1863, as the property of said Pot-win : and for such attachment and conversion this suit is brought. The purchase-money for the wagon having become due, and remaining unpaid at the time of the alleged conversion, the plaintiff, if he had not parted with his title, was the entire owner of the wagon with the absolute right of possesion. Bradley v. Arnold, 15 Vt., 382; Buckmaster v. Smith, 22 Vt., 203.

The plaintiff, being the owner, could sell, and invest Ms vendee with the same rights that he had himself: subject to any contingent right of Potwin. Deming v. Austin, 34 Vt., 330.

The defendant requested the court to charge the jury “ that if they should find that the plaintiff, in December, 1861, sold and transferred whatever title and interest he had in the wagon to Assi-nault, and that the wagon, at the time of the alleged conversion, was in the possession of Assinault, with the right to sell and dispose of the same, that the plaintiff could not maintain this suit.”

We think this request should have been substantially granted.

The testimony tends to show that Assinault bought, not only the contract, but the plaintiff’s right and interest in the wagon. Indeed, it would seem a very singular contract that plaintiff should sell the right to collect payment for the wagon, retaining in himself the property.

It is true that if a suit counting on the contract had been brought to recover the instalments named in the contract, it must have been brought in the name of the plaintiff, although Assinault was the owner of the property : because the contract was not negotiable.

But this is an action of tort for wrong and injury to property. The contract was evidence of title. The plaintiff could as well have made a prima facie case by proving that he made the wagon in his own shop and from his own material. The defense must then have called out the contract, and that would have still left the title in the plaintiff. He must then have gone further and proved that he had fulfilled the conditions and paid for the wagon.

The court charged the jury that “if Assinault had acquired all the interest and title of Potioin in the wagon, so that it had become absolutely his before the alleged conversion, that the suit should have been brought in the name of Assinault.” We think this was error. It was not necessary that he should have “ acquired the interest and title of Potwin,” for he had no title that he could convey until he had paid the stipulated price: no part of which he has yet paid.

It would be a very anomalous case that Assinault should have paid to the plaintiff the full agreed price of the wagon, and Pot-win have paid nothing and insolvent, and still the plaintiff remain the absolute owner of the property. The suit having been instituted in the interest and for the benefit of Assinault, we should be reluctant to turn the plaintiff out of court upon a technicality, if there was any escape. But the plaintiff appears an entire stranger to the case and the title. He testified that after he received his full pay for the wagon, he felt no further interest, and the whole matter had escaped his recollection. He knows that he was paid for the wagon, but the details and incidents he has forgotten.

The judgment of the county court is reversed, and the cause remanded.