96 Vt. 227 | Vt. | 1922
This is an action of general assumpsit to recover money which the defendant has collected on accounts plaintiff claims to have owned, and the value of certain personal property of the plaintiff’s which it is claimed the defendant has converted to his own use. The trial was by jury.
At the close of the plaintiff’s evidence the court, on motion, directed a verdict for the defendant to which the plaintiff saved an exception. This exception presents the first question for review. In disposing of it the evidence must be viewed in the light most favorable to the plaintiff.
It is not apparent upon what ground this action can be maintained for the tangible property that came into the possession of the defendant. Assumpsit will not lie for the -wrongful detention of personal property nor for the wrongful conversion of it unless it appears that money or its equivalent has been received therefor. Scott v. Lance, 21 Vt. 507; Stearns v. Dillingham, 22 Vt. 624, 54 A. D. 88; Winchell v. Noyes, 23 Vt. 303; Kidney v. Persons, 41 Vt. 386, 98 A. D. 595; Saville, Somes & Co. v. Welch, 58 Vt. 683, 5 Atl. 491. And while the law will presume that the sales of the auto accessories and supplies made while the defendant was in charge of the business were for cash or its equivalent, there was no showing as to what articles were sold, for how much, or who owned them.
The plaintiff stoutly maintains that the defendant never had title to any of the property that came into his possession for the reason that the Maine corporation did not acquire title to the property of the plaintiff, that the Massachusetts cor
It remains to consider .whether the plaintiff made a case for the jury respecting the accounts. The defendant testified in the trial of another case between the same parties, and, also in the trial of this case, that he had collected about $2,200 on accounts that were assigned to him by the Massachusetts corporation. We understood from what was said in argument that the plaintiff claimed that these accounts were the ones that were reserved at the time Almon and Dillon sold their stock to the Maine corporation, but such claim is not made in its brief, nor could it well be made in view of the position taken by the plaintiff in the trial below. The claim briefed is that the jury could fairly infer from the defendant’s testimony given in the trial
If the defendant collected accounts that in fact belonged to the plaintiff, whether such accounts accrued during the operation of the Maine corporation or from the sale of the plaintiff’s property by the Massachusetts corporation, to that extent it may recover, because the assignment to the defendant by the latter corporation was ineffectual to pass title to plaintiff’s property. On the other hand, if the accounts collected by the defendant were the result, solely, of the operations of the Massachusetts corporation, and did not include the proceeds of any of plaintiff’s property, the plaintiff cannot recover merely because that corporation did business in plaintiff’s name. It should be borne in mind that the stockholders are not the corporation, neither do they own the property of the corporation in the sense of having legal title to it, and this is true even though all the stock is owned by one person. A transfer of the capital stock does not affect the ownership of the property of the corporation, that still belongs to the corporation. And so it is, that regardless of who owned the capital stock of the plaintiff, the corporate property, for aught that appears in this case, belonged to the plaintiff. Whether it owned the accounts collected by the defendant was a
The plaintiff excepted to what it termed a finding by the court that the money collected by Powell did not belong to the plaintiff. The court did not so find; it merely stated, in substance, in disposing of defendant’s motion, that there was no evidence tending to show that such money belonged to the plaintiff. The exception is without merit.
The plaintiff excepted to the exclusion of the federal income tax return for the year 1919. It is claimed that it tends to show the value of the property, and that the business was then being done by the Capital Garage Company. Since, on the evidence, nothing is recoverable but the accounts collected by the defendant, and no claim being made but that the Maine corporation did business in the name of the plaintiff while it operated, until January 22, 1920, the exclusion of this evidence, if admissible, was harmless.
Defendant’s “Exhibit B,” the assignment from the Massachusetts corporation to the defendant, was received in connection with the defendant’s testimony relative to the accounts which he had collected, not as independent evidence, nor as evidence of defendant’s title to any of the property therein enumerated. For the purpose for which received, it was admissible.
Judgment reversed and cause remanded.