Hyde Park Lumber Co. v. Shepardson

72 Vt. 188 | Vt. | 1900

Taft, C. J.

Was Judge Morse disqualified in the ease at bar?

He was an owner of stock in the Morse Lumber Company and the plaintiff was a like owner. A disposition of the case before us would not in any manner affect their interests nor the interest of either party in the Morse Company. The property of the latter company could not be increased nor diminished by any result in the case before us, nor would the interest of Judge Morse be in any way affected. He could properly sit in the case.

This cause, we infer from the docket entries, is an action of trover (although the exceptions are silent on the point) for several hundred butter tubs.

The plaintiff claims the tubs by virtue of a contract with Brown & Son, who manufactured them under an agreement with the plaintiff, and also by force of two chattel mortgages executed subsequently to the contract. Brown & Son sold the tubs to the defendant and the validity of the sale depends upon the right of Brown & Son to make it.

Exhibits 1, 2, and 3 are found by the court below to constitute the contract between the plaintiff and Brown & Son, and such finding is conclusive. We cannot revise a finding of fact when there was testimony in the case tending to support it, and there clearly was in this case.

By the terms of the contract the logs in question were purchased in the name of and for the plaintiff and the title to such logs vested in the plaintiff and when manufactured, the plaintiff was to sell the manufactured product. The logs belonging to the plaintiff, the product of them, when manufactured, likewise belonged to it. By force of this contract, the tubs never became the property of Brown & Son. They were the property of the plaintiff, and if so, they were, in law, sold as the property of the plaintiff. The fact that Brown & Son executed mortgages of the property to the plaintiff, did not, in law, release the rights that the plaintiff then had in it, by force of the contract. They would not lose their rights under the contract by the exercise of an “over-abundant caution” in taking the mortgages. Brown & Son could take orders for the property, but that made no change in the title to the lumber, nor its manufactured products. Brown & Son were paid, on certain conditions, twelve and one-half cents per thousand for such lumber as they might take orders for.

The court below found that in selling and delivering these tubs to the defendant, James Brown & Son disregarded the terms of the contract and sold and delivered them, not in compliance therewith, but wrongfully and in their own right and without the knowledge and consent of the plaintiff, This finding is conclusive against the right of the defendant. Therefore, the various questions regarding the chattel mortgages become immaterial.

Upon the finding of facts, there is no question but that there was a conversion of the property and the

Judgment should be and is affirmed.