140 A. 160 | Vt. | 1928
The plaintiff sues for the conversion of an automobile. The defendant had judgment below on facts found by the court. The plaintiff excepted.
The findings show that on February 21, 1925, the defendant bought of Kelley Nelson, Inc., a Nash automobile, which he paid for by turning in a Maxwell car at a price agreed upon and giving his note secured by a lien on the Nash car for the balance of the purchase price. A week later, this note was transferred to the plaintiff and credited to the account of Kelly Nelson, Inc. This note was not paid when it fell due, and on November 10, 1925, it was charged back to the account of Kelly Nelson, Inc., and its amount was included in the latter's note for a larger sum then taken by the plaintiff. Since that time, the plaintiff has held the lien note as collateral security for such larger note. It turned out that the Maxwell car was subject to a mortgage amounting to $275. When this fact appeared, and on April 4, 1925, the defendant executed to Kelly Nelson, Inc., a mortgage on certain real estate in Montpelier as additional security for the lien note and to cover the amount of the mortgage on the Maxwell car, together with a bill for certain accessories bought of them. This real estate was subject to a prior mortgage of $800. Its value was from $2,250 to $2,500. On February 9, 1926, at the request of Kelly Nelson, Inc., the defendant executed to them a warranty deed of the Montpelier property subject to the mortgage aforesaid. This deed was made and accepted with the express agreement that it was to operate as a payment and discharge of the lien note, and that any amount that might be realized from the property in *45 excess of the amount required to pay that indebtedness should belong to the defendant. On April 8, 1926, Kelly Nelson, Inc., conveyed this real estate to the plaintiff; and it is found that this conveyance was "subject to the same understanding and agreement as to the defendant," — which finding counsel understand to mean that the plaintiff was to take the property in satisfaction of the lien note and account to the defendant for any excess as above, — and we adopt this interpretation of the finding. Exception was taken to this finding for lack of supporting evidence. About the middle of July, 1925, the defendant went to Lowell, Mass., to work and took the Nash car with him. He came back with it in August, and a little later again went to Lowell with the car, and it has remained there ever since. So far as the findings show, no one interested in the lien note consented to the removal of the car from the State. It was this removal and an uncomplied with demand for the car that the plaintiff relied upon to establish the conversion.
The plaintiff excepted to the failure of the court to find, as it was duly requested to do, that the lien note was duly recorded. G.L. 2836 provides that personal property sold conditionally, upon which there is reserved a lien duly recorded, shall not be removed from the State without the consent of the vendor or his assignee. So it is incumbent on one who stands upon such removal to establish a conversion of the property to prove that his lien is recorded in the proper town clerk's office. Such a finding was necessary to this plaintiff's right of recovery so far as its claim was predicated upon the removal of this car to Lowell. The exception was well taken. It is no answer to the plaintiff to say that the instrument itself, which was an exhibit and is referred to and made a part of the findings, shows the fact of proper registration. The instrument is evidence, merely; and, since the action was triable by jury, exhibits cannot be referred to for the purpose of supplementing the findings, as we have often held. Hooper, Tr. v. Kennedy,
The plaintiff also excepted to the court's failure to find, though properly requested, that the car was taken out of the State without the plaintiff's consent; that the plaintiff, through its attorney, made seasonable demand on the defendant for it; and that its value was stipulated to be $700. These were facts vital to the plaintiff's case as made by its complaint, were *46 established by sufficient evidence, and should have been covered by the findings. But it is quite apparent that these errors were harmless, if the finding as to the agreement under which the plaintiff accepted the deed of the Montpelier real estate is to stand. In that case, none of the foregoing matters would be of consequence, because the conversion, if any, was accorded and satisfied by the deed.
The only testimony in the transcript pointed out or relied upon by the defendant as sustaining the finding is the following question and answer in the testimony of Kelly, of Kelly Nelson, Inc.:
"Q. You told the bank what your arrangement was with the defendant when you gave them this deed?
A. I did."
The witness had emphatically denied that the arrangement referred to included an agreement to accept the deed in satisfaction of the lien note. The question was asked by the court; if the answer was intended to mean what the defendant claims for it, it was contrary to the whole tenor of the witness' testimony. Omnia rite acta is the rule, to be sure, and in aid of the judgment we must read the evidence so as to support the finding, if this can reasonably be done. Reed v. Hendee,
As bearing on the probability that Kelly Nelson, Inc., accepted the deed as a satisfaction of the debt represented by the lien note, the defendant was allowed to show an offer of $2,250 was made for the property at Montpelier and that Kelly *47
advised against its acceptance on the ground that it was inadequate. The court correctly ruled that this unaccepted offer was not admissible as evidence of value (Smith v. Reynolds,
Reversed and remanded.