45 Vt. 118 | Vt. | 1872
The opinion of the court was delivered by
Before the statute of 1854, the delivery of property under such a contract of conditional sale as appears in this case, was a mere bailment, and carried no attachable interest in the property to the bailee. West v. Bolton, 4 Vt. 558; Bigelow v. Huntley, 8 Vt. 151; Smith v. Foster, 18 Vt. 182; Buckmaster v. Smith, 22 Vt. 203. A creditor of the bailee could not, by attachment, acquire any right to stand in his place and pay off the claim of the conditional vendor, and thus make the property attachable. Buckmaster v. Smith, before cited. If such creditor took the property by attachment, before default in payment even, the vendor had the right against the creditor and officer to resume possession of the property, notwithstanding the bailment. Bigelow v. Huntley, before cited. It follows that, if the creditor or officer did not yield to the claim of the vendor to possession, but converted the property, the vendor could maintain trover for this conversion. In such action, the defendant could not stand at all upon the rights of the bailee, and would be liable for the full value of the property, the same as any stranger.
But after default in that respect for the whole-period provided, the defendant had lost the right to stand in the place of the conditional vendee as to payment, and stood as a mere stranger to the plaintiffs. In that position, he was a trespasser as to the plaintiffs, without any justification to stand upon; and he could not discharge himself by showing a loss of the property without his fault, but stood as a wrong-doer, liable for the property by reason of the unlawful taking, without regard for what became of it after he took it.
If the vendee had an attachable interest in the property, the defendant would have had the right to have held the property from the plaintiffs until default of payment, and the plaintiffs could not have maintained replevin, nor would mere detention have been a conversion till then. But, as appears from Fales v. Roberts, they could maintain replevin at any time after the taking, before default as well as after; and this shows the whole right of property to have been in the plaintiffs. If the plaintiffs had recovered the property by taking it from the defendant, by the
The plaintiffs’ right of recovery represents the interest of the vendees, as well as that of themselves, on account of the liability-over, and these interests are the whole estate in the property ; the plaintiffs, therefore, are entitled in this action to recover the full value of the property.
If the defendant would have avoided this full liability, he should have made payment or tender of the sum due the plaintiffs, as the statute gave him liberty to do.
This case has been twice argued without producing unanimity in the minds of the members of the court at either hearing; the views expressed are, however, assented to by a majority of the court.
Judgment affirmed.