Patee v. Pelton

48 Vt. 182 | Vt. | 1876

The opinion of the court was delivered by

Wheeler, J.

The seller of a commodity, if in possession of it, is always understood to undertake that it is his own. Long on Sales, Rand’s ed. 201; 2 Addison on Torts, Wood’s ed. 429. The law of exchange in this respect is the same as that of sale. Long on Sales, 1. So when the defendant, by exchange, having the carpets in his possession, sold them to the plaintiff, he impliedly warranted that he had a good title to them; and not having it — and on the facts reported he must have known of the lien, and so have known that he did not have it — by assuming that he had, knowing that the assumption was false, he fraudulently deceived the plaintiff. By showing the exchange, made under these circumstances, and the existence of the lien, and that the lien had caused him damage, the plaintiff had made out a full cause of action, without showing anything concerning his own information of the lien, and of course there was no burden of proof resting on him in respect to it. The proof of the rest of the case without that, would support a declaration upon a warran-tizando vendidit, according to the from approved in Goodenough v. Snow, 27 Vt. 720.

In respect to the adjudication that the cause of action arose from the willful and malicious act of the defendant, &c., it is not claimed here but that this action is of the class in which such an adjudication may be legally made, but only that the facts reported do not warrant the conclusion that the cause of action did arise from such willful and malicious act, and that the County Court granted the certificate pro forma. But it being conceded that the action is a proper one for the adjudication, it was wholly within the province of the County Court, as triers of fact, to weigh and consider the fácts reported, and draw the inference of willfulness and malice or not, according to their own .judgment; and having-granted the certificate, the conclusive presumption is that they found the malice from the facts, and that the judgment was pro forma only as to the law arising upon the finding. If the exceptions had shown the adjudication 'to have been without consideration of the facts, the question would have been different.

Judgment affirmed.