Pettingill v. Elkins

50 Vt. 431 | Vt. | 1878

The opinion of the court was delivered by

Ross, J.

The first exception is in regard to the correctness of the charge in respect to change of possession.

The court, in substance, charged the jury, that if the sale of the pans from the plaintiff’s father was made in good faith and without any purpose to defraud his father’s creditors, and if the father, agreeably to and in compliance with the terms of the sale, did, when he was through using the pans that season, put them into the unoccupied house of Porter for the plaintiff, in the place of the sleds, which the plaintiff had stored there with the assent and permission of Porter, and did take the sleds away as his own, — the sleds being exchanged in part payment for the pans— it would constitute a sufficient change of possession to protect the pans from attachment on the father’s debts. The unoccupied house was on premises the title to which was in Porter and his wife, and occupied by them, and not occupied or under the control of the plaintiff’s father.

In Bailey v. Quint, 22 Vt. 474, it was held that the removal by the vendor and vendee, of boards from the mill-yard to the mill shed, with the permission of the owner of the shed, obtained by the vendee, but without notice to the owner of the shed of the sale, constituted.a sufficient change of possession to protect them from attachment as the property of the vendor. The case is cited and recognized as an authority in Hammond v. Plimpton, 30 Vt. 333. We think that the case at bar falls within the principle and scope of that decision. If the plaintiff had purchased the sleds of his father, and caused them to be placed in Porter’s unoccupied house with Porter’s permission, although Porter was not notified of the purchase, by the decision of Bailey v. Quint they would have been protected from attachment on his father’s debts. Supposing, while thus situated, he should exchange these sleds for other sleds, and cause the other sleds to be put in their place, without notice to Porter of the exchange, would not the latter be equally protected to the plaintiff against attachment on the vend- or’s debts as were the first ? The first sleds were protected because they were in the plaintiff’s possession, though on Porter’s premises. Would not the latter be equally in the possession of the plaintiff? Having Porter’s permission to store sleds on his premises, the law, without some showing to the contrary, would presume the permission to continue, though the sleds were exchanged for other sleds or other property not more cumbersome. It will be noticed that in Bailey v. Quint, obtaining permission by the plaintiff from the owner of the shed to place the boards there, and causing them to be placed there, effected the change of possession. In the case at bar, the plaintiff obtained the permission to store property in Porter’s unoccupied house. He also caused the pans to be placed there. The father did not place them there through any right he had obtained from Porter, nor did he place them there for himself or as his property, but through the right obtained by the plaintiff and for and as the property of the plaintiff. There was no error in the refusal to charge, nor in the charge on this point.

Neither do we find any error in the charge in respect to the testimony of Guy Woodard. The court left the consideration and weighing of his testimony fully to the jury. An expression of an opinion by the court in regard to the character and weight to be given to testimony, if the full consideration of the same is submitted to the jury, is not error. Missisquoi Bank v. Evarts, 45 Vt. 293; Stevens v. Talcott, 11 Vt. 25; Gale v. Lincoln, 11 Vt. 152. But the court, in the case at bar, simply called the attentlon of the jury to some views in which this testimony might be considered ; and it is not error that the court, unrequested, did not call their attention to other views that might be taken of this testimony, so long as the jury were left free to consider and weigh it in any and every possible view.

Judgment affirmed.