96 Vt. 140 | Vt. | 1922
This is an action of replevin for a black mare. The case was tried before a referee, upon whose report judgment was rendered for the defendant for the return of the property and for the defendant to recover his costs, to which the plaintiff excepted. The hearing having been by a referee and his report having been accepted by the court, the findings are conclusive of the facts in issue, and no inference can be drawn in aid thereof. G. L. 2072; Kimball v. Baxter, 27 Vt. 628; Fuller v. Adams, 44 Vt. 543; Darby v. National Bank, 57 Vt. 370; Goff v. Brainard, 58 Vt. 468, 5 Atl. 393.
The controlling question here is whether the findings show a perfected contract of exchange of the mare in question for.the defendant’s brown horse and thirty dollars with
In a case like this, the question as to when title passes is one of intention of the parties, to be derived from the circumstances, and ordinarily the question is one of fact. Courts have laid down more or less definite rules to govern the circumstances of a particular ease, as the best means of arriving at such intention but they must give way when the intention otherwise appears. 24 R. C. L. 15, 16; Kitson Mach. Co. v. Holden, Admr., 74 Vt. 104, 108, 52 Atl. 271. The common law rule that a chattel may be sold so as to vest the title in the buyer, as between the parties, without actual delivery, is subject to the condition that such is the intention of the parties. 24 R. C. L. 35, par. 298. In the absence of any agreement to the contrary, the rule, where the sale is for cash or its equivalent, is that the delivery of the thing sold and the payment of the purchase price are concurrent acts, and the title does not pass until payment or tender of payment is made, and the title remains in the seller until delivery (Chalmers v. McAuley, 68 Vt. 44, 33 Atl. 767, and eases there cited), and after delivery the title remains in the vendor until
It is found that on or about September 1, 1919, the plaintiff and defendant entered into negotiations respecting the •exchange of horses. The plaintiff was the owner of the mare in question, and the defendant was the owner of a brown horse. The negotiations respecting the exchange took place where the plaintiff was residing and where the mare was kept. The mare was examined by the defendant who, after the examination, expressed himself satisfied wtih her, and the boot money was then talked over and finally agreed upon at the sum of thirty dollars. The defendant “gave” the plaintiff one dollar and sent his son for the brown horse and the balance of the boot money. On the latter’s return, the plaintiff examined the horse and refused to go on with the trade, claiming that the horse was not as represented. At some -time — 'whether before or after the plaintiff said it was “no trade” does not appear — the horse and boot money were tendered to the plaintiff, and their acceptance in exchange for the mare was refused. Thereupon the defendant’s son, by direction of his father, started to lead the mare away. Upon the plaintiff’s resisting, the defendant knocked him down and the mare was led away and kept by the defendant until she was replevied by the plaintiff. During the negotiations, before the horse was sent for, the defendant suggested that the plaintiff go and see the horse, but the plaintiff said he had seen it and did not care to. The findings do not show that the plaintiff had ever examined the horse, but enough does appear to show that the plaintiff waiv,ed the right to examine it, and that the rule of caveat emptor applies. The failure of the referee to find that the defendant made any fraudulent representations in the respect claimed by the plaintiff, would defeat any claim of right to rescind the contract on the ground of fraud. But the plaintiff still had the right to repudiate or revoke the contract and by so doing subject himself to an action for damages. So far as the title to the mare is concerned, the bargain being in effect for cash on delivery, it remained in the plaintiff and would not pass to
We are not prepared to say but that the findings are also short on the question of whether the bargain had become a binding contract. There is no finding that the dollar found to have been given the plaintiff was given as earnest money, or in part payment. Without such a finding, the contract would be within the Statute of Frauds. G. L. 1877. It could have been neither unless it was accepted as such by the plaintiff. Edgerton v. Hodge, 41 Vt. 676. Perhaps the necessary fact could have been inferred from the facts already found; were such an inference permissible; but that was for the referee, and he has not found it, due probably to the fact that he was unable to find what was done with the money. But, if the findings are construed as showing that the dollar was paid as earnest money, to bind the bargain, or as part payment, that would not change the result. That fact would simply take the bargain out of the statute, and it would then stand as a contract for the exchange of horses, but not a completed and binding contract of exchange, which having been repudiated would entitle the defendant to his damages only for the breach of the contract for the exchange. The payment or tender of the one dollar would not in the circumstances make it a perfected sale.