95 Vt. 370 | Vt. | 1921
The action is replevin for an automobile which the plaintiff claims the defendant leased from the Langham Motor Car Company. The ease comes here on defendant’s exceptions to a judgment for plaintiff on facts found by the court below.
The material facts found are these: Defendant, a resident of Montpelier, was in Boston, Massachusetts, November 8, 1919, and there purchased, or opened negotiations that resulted in the purchase of, the automobile in question from the Langham Motor. Car Company. At that time the price of the car was agreed
“Boston, Mass., Nov. 8, 1919.
“Sold Walter C. Washburn one Haynes 4 passenger for
$1,525
Model 32377 50
' ' No. 1345 . ' --
$1,475 Due”
The defendant was again in Boston, November 15, 1919, and then paid $700 on the purchase price of the car, and executed the instrument under which plaintiff claims title. The instrument, after reciting that the defendant has “this day received and hired of the Langham Motor Car Company” the car in question, and has paid as “rent” $750, provides that he will pay the further sum of $775, evidenced by seven promissory notes of that date, and that when paid, rent shall cease and the ear shall become the. property of defendant. The instrument further provides that, if defendant fails to pay said rent, he will, on demand of the. company, return said car, that upon default of any one payment the entire debt shall be due and payable, and such default shall constitute a breach of said lease;.that in the event of a breach the company may enter any building upon any land and take possession of and remove said car, without rendering itself liable to refund any sum received by it as rent.
After this instrument was executed the ear was delivered to the defendant and he drove, it to Montpelier. The plaintiff later acquired all right and title of the company in the contract and notes. On July 30, 1920, defendant owed $700 on his indebtedness to plaintiff, evidenced by the three original notes last to fall due and by renewal notes given in lieu of the other originals, all of which, under the terms of the contract, were overdue. On that day the plaintiff’s attorney, Perry, called on defendant at the latter’s office in Montpelier, and after some talk about defendant’s failure to. pay, and his reason therefor, Perry told defendant that he must either have payment of the notes or have the car. Defendant refused to pay the notes, and did not turn the ear over to Perry, or tell him where it was. The car was in a local garage at that time. , Thereupon Perry caused this writ "to be made and served; the car was taken and immediately delivered to him and he took it to Boston. What has since been done with it did not appear.
The reasonable import of the facts found is not sufficient to support an inference of demand and refusal, which is necessary to sustain the judgment.
Judgment reversed, and judgment for the defendant for the return of the automobile and for his costs.