38 Vt. 503 | Vt. | 1866
The opinion of the court was delivered by
This is an action of replevin, and the only question important to consider is whether the tender was seasonably made ; and the decision of this question depends upon the construction the court give to the statute authorizing the attachment of the property by the defendant. No question is made but that the interest of Gray in the property, at the time of the attachment, was that of a vendee under a contract of sale where payment of the purchase money is made a condition precedent to the transfer of the title. The case shows that the property was attached by the defendant as deputy sheriff on the 4th day of May, 1864 ; that the defendant on the 6th day of May, 1864, was informed and notified by the plaintiff of his claim on the property, and the defendant on the 25th day of June, 1864, caused to be tendered to the plaintiff in this action thirty-six dollars, for or on account of the claim of the plaintiff, and he refused to receive it. Independent of the statute, property thus situated
The contract between Fales and Gray was that the latter should make payment within three months from the 25th day of March, 1864, and the defendant claims, and such was the ruling of the county court, that the attaching creditor was, in respect to the time of payment, substituted to the rights of the vendee.
A brief consideration of the nature and object of conditional sales, the provisions of the statute authorizing the attachment of the vendee’s interest in the property, and of the evident intention of the legislature in the provisions made to protect the rights of the vendor, will afford reasonable and safe rules of interpretation. In case of such sale the payment of the purchase money is made a condition precedent to the transfer of the title. The property under such sale ordinarily passes into the possession of the vendee for his use until the time of payment arrives. The vendor seldom has any security for payment except his lien upon the property. Pit is understood, and the vendor expects, that the vendee will use and]take such reasonable care of the property as would _ be required of a bailee for reward. The vendor is supposed to have personal knowledge of the customary usage of like property by the vendee, and that in his hands it would not be likely to deteriorate in value beyond what would naturally result from careful usage. To a considerable extent such sale is founded upon personal confidence and trust arising from the vendor’s knowledge of the probable safety of the property in the hands of the vendee. It is a confidence and trust which the vendor might not be willing to repose in the attaching creditor ; and it is a trust which the vendee has no power to transfer until the condition of the sale is complied with. Hence the statute provides that payment or tender of payment of the unpaid purchase money, shall be made within ten days after notice of the amount remaining unpaid.
To illustrate the correctness of this position, let us suppose the property to have been sold on a credit of one year, and that the attaching creditor is insolvent, resides without this state, or moves from the state previous to the time of payment, and in the mean time the property is destroyed or carried beyond the reach of the vendor; now under any other rule than the one herein laid down, the probable result would be a total loss to the vendor.
It is urged by the defendant that the plaintiff could not have been compelled.to receive payment until it was due by the terms of the contract, and there being controversy as to the amount remaining unpaid, he was not required to make payment or tender of payment within the time named in the statute.
The rights of both veridor and attaching creditor in such case are regulated by the statute. It requires payment to be made or tendered within a given time, without regard to the time stipulated in the con
The views of the court above expressed render it unnecessary to consider the other exceptions taken to the ruling of the county court.
The judgment of the county court is reversed, and the case will be remanded to the county court for assessment of the damages, unless the plaintiff will consent to nominal damages. Judgment for the plaintiff for nominal damages and his costs.