75 Vt. 417 | Vt. | 1903
The right of action depends upon the construction to be given to the following agreement, which was executed by the parties named therein: “This agreement made this
It is found that before the execution of this contract, the defendant made an agreement with the plaintiff, under which the horses and harnesses passed into the possession of the plaintiff, and remained in his possession, and were used by him on the job mentioned in the written agreement, and on other jobs agreed upon between the plaintiff and defendant, until June 17, 1901, when they were taken by the defendant; that while the property was in the possession of the plaintiff the following endorsements were made upon the written agreement: “Received on the within agreement November 1st, $22. Received on the month agreement March xst $43. June 1st received to apply on the within note $24.36;” and that the amount of each of these indorsements was determined by the plaintiff and the defendant by settling their respective accounts at the dates of the several indorsements. The fact that the property was delivered by the defendant to the plaintiff at or before the execution of the written contract, and that while the plaintiff retained the possession of the property he made payments upon the contract, which were received by the defendant and. indorsed thereon, indicate that the parties inter
The defendant being a conditional vendor of the property, his remedy for a breach of the contract of sale was under V. S. 2293. He, having taken the property contrary to the provisions of this statute, and refusing to deliver it on demand, is liable in this action-for its conversion. Roberts v. Hunt, 61 Vt. 612, 17 Atl. 1006; Smith v. Wood, 63 Vt. 534, 22 Atl. 575. The plaintiff being the conditional vendee of the property and the defendant the vendor, and payment in accordance with the terms of the sale not having been fully made at the time the property was converted by the defendant, the plaintiff can recover only the value of his interest in the property at that time. This sum is the value of the property at the time of the conversion, diminished by the sum then remaining unpaid upon the contract of sale. Burdict v. Murray, 3 Vt. 302, 21 Am. Dec. 588; Willey v. Laraway, 64 Vt. 559, 25 Atl. 436; Stillwell v. Farewell, 64 Vt. 286, 24 Atl. 243; Maher v. Maher, 73 Vt. 243, 50 Atl. 1063; Vickery v. Taft, 1 D. Ch. 241; Buckmaster v. Mower, 21 Vt. 211. In ascertaining the sum remaining due upon the contract of sale, the value of the
The pro formen judgment is reversed, and judgment for the plaintiff to recover $64.36 and his costs.