28 Vt. 1 | Vt. | 1855
The opinion of the court was delivered by
The leading question in this case, i. e. whether the action of trespass will lie, seems to us expressly decided in the late cases of Briggs v. Oaks, same v. Bostwick, 26 Vt. 138 and same v. Bennett 26 Vt. 146. These cases were extensively discussed at the bar; and the opinions contain all the argument which I could now offer, and which it is not important to repeat here. The case of Farrant v. Thompson, 5 Barn. & Ald. 826, had been adopted by this court in Swift, v. Mosely 10 Vt. 208, where it was decided, that if the. tenant of personal property, sold the same during the term, he thus determined his tenancy and forfeited all right in the property; and the general owner might sue either the tenant who sold the property or the purchaser, in trover, and by parity of reason, in trespass. But in the late cases referred to, we decided that the lessor of a farm who stipulates, either expressly or by reasonable implication, to have the general property in the crops, and that they should be consumed upon the farm, or if the same stipulation was made in regaz-d to other pz’opez-ty put on the farm, or raised there, as that it should be kept there during the term, and the tenant, in violation of such stipulations, sold the same and suffered the property to be removed from the farm, all his right and interest therein was determined, and the lessor might recover for it, in trespass, against all consenting to, or aiding in the removal. The same general principles are held in Smith v. Atkins, 18 Vt., 461. We also substantially adopted the principles of the case of Lewis v. Lyman, 22 Pick. 437, in the case of Briggs v. Oaks. The difference between the foregoing cases, and that of Hurd v. Darling, 14 Vt; S. C., 16 Vt., arises altogether from the difference in the contracts in the cases, and the construction the court gave to them. That the contract in the case of Hurd v. Barling, was fairly susceptible of the same construction we give the present contract, or which we gave the contract in Smith v. Atkins, is undoubtedly true; but the contracts were very far from identical, and altogether susceptible of the different construction put upon them. But it is certain the late? cases incline
II. It is certain that the defendant Red way could derive no more right from Stevens than Stevens had, however innocently he might have acted. Stevens stood in no such relation to the plaintiff, as would enable him to convey more title than he himself possessed, which was only to have the hay fed out upon the farm.
III. The rule of damages was fair enough, as it seems to us. The plaintiff had a right to have all the hay fed out upon the farm, or as nearly as the stock could be calculated in proportion to fodder, leaving all doubts in favor of having less stock than fodder, and the small residue of the hay the plaintiff had the right to purchase upon certain terms. Under this state of the contract, the plaintiff was not bound to adopt a different rule of settling the transaction, nor, when defendant had suffered a large quantity of hay to be sold upon execution against him, was plaintiff bound first to sue the sheriff and recover what he could of him. He might sue any one, and every one, who intermeddled with the hay, contrary to the terms of the lease, and the plaintiff’s rights under it.
The case seems to have ■ been correctly tried, and the judgment is affirmed.
