Parsons v. Strong

13 Vt. 235 | Vt. | 1841

The opinion of the court was delivered by

Bennett, J.

Whether parol evidence was admissible to show that the property was of greater value, than that specified in the receipt, must depend upon the construction which we give the contract. It has been said that the words, “ of the value of,” &c., are descriptive of the property, and do not constitute a part of the contract. But I cannot think they were used with that intent. They are not proper words of description, — do not serve to identify the property, and would be useless for that purpose. To say of a horse, or of a wagon, they are of a particular value, which always. rests in opinion, would indeed be a strange description, and have little to do with the distinguishing of them from others of their kind. The words are important, and I can have no doubt that they were inserted for the purpose of measuring the extent of the receipt-man’s liability, and they became an essential part of the contract. Receipts of this kind are, ordinarily, procured at the instance of the debtor, and for his accommodation, in order that he may still have the use of the property attached. In this very case, the provision in the receipt, that the property should be returned free of expense, tends [to show that this was of that character, though the case itself is silent as to what became of the property. Officers’ receipts are designed as an indemnity to the sheriff against any claim which the attaching creditor may have against him, and, though, in some cases, he may, upon the attachment being dissolved, be responsible to the debtor for the return of the property ; yet, as the receipt-man, is ordinarily a mediator, merely, between the debtor and the officer, he is released from such responsibility. It has been a common practice for sheriffs to have a valuation of the property attached, affixed in the receipt; and this is designed for the benefit of the creditor; and though the receipt may be taken without his privity, yet, it is always safe for the officer, provided the valuation is fully equal to the value' of the property. The object of affixing a valuation is, to conclude the receipt-man, and I believe it has long been considered, by the profession and our courts, as well settled, that the receipt-man could not, by parol, reduce his liability below the value of the property affixed in the receipt; and, indeed, in the case of Spencer v. Williams, et al. 2 Vt. R. 209, it was held that the receipt-man could not be permitted to show that no such property, as that specified in the receipt, was ever in fact attached. The plaintiff was not obliged to take a receipt, and, if he did, much less was he obliged to have a valuation affixed to the property, and, no doubt, would not have so done, if it had not been matter of mutual stipulation between them. The receipt-man was willing to be accountable for the property at a given price, free of expense ; and I can have no doubt that the valuation was agreed upon, to limit the extent of his liability in case the property was not returned. Though the receipt-man, in a certain sense, is but the servant of the officer; yet, his possession of the property is coupled with an interest. There is no doubt, however, that the officer may, at any time, as against the debtor, or receipt-man, re-take the possession of the property, notwithstanding the valuation. This, however, cannot affect the present question. Though the receipt-man gained no interest in the property, as against the officer, still, it was competent for them to stipulate for the rule of damages, in case of a non-delivery of the property. This, in effect, has been done, and it must be mutually conclusive upon the parties. It can, in this respect, make no difference whether the action is, in form, assump-sit, or in case, ex delido. In either, the contract of the parties would govern as to the rale of damages. The consequence is, that the judgment of the county court must be reversed, and a new trial granted.

Collamer, J. — dissenting.