Riley v. Wheeler

42 Vt. 528 | Vt. | 1870

The opinion of the court was delivered by

Wheeler, J.

The parties were at issue with reference to the extent of the authority of Lawrence, and the time within which it was to have been exercised. The testimony on this subject came from Lawrence, but it was not unequivocal either as to the extent of the authority or the time it was to continue ; he had doubts about it in his own mind, and so told the defendants. Upon this testimony it could not be determined as matter of law''whether Lawrence exceeded his authority, or not, either as to time or manner of execution; a trial of fact was necessary to determine each question. The court -submitted the question as to the extent of the authority to the jury, but determined the time it was to continue, if found, as a matter of law. In this we think there was error. Both questions should have been submitted to the jury, as well the time the authority was to continue as its extent in other-respects.

The parties agree that Lawrence had not any legal authority to sell upon credit. The testimony tended to show that the defendants said to him that they would give twenty-five dollars for the house, and that he agreed to a sale of it at that price ; that they did not pay the price then, and he said it would make no difference. The court held that it was not a sale upon credit; and this we think was correct. No time was given for payment of the price, or leave given to take the house away without payment.

The testimony tended to show that as soon as the plaintiff learned that Lawrence had sold the house, he proceeded to repudiate the sale, and found the defendants in possession of the house preparing to remove it; that he then repudiated the authority of Lawrence, claimed the house as his, and forbade its removal by the defendants. The court held this repudiation, claim and notice to be of no avail to the plaintiff. The house stood upon Lawrence’s land, in which the plaintiff had no interest; it was therefore a mere chattel, and has been so treated by all parties for all purposes. The price had not been paid or tendered, neither had any time been given for the payment.

In Noy’s Maxims, page 87, it is said; “ If a man do agree for a price of wares, he may not carry .them away before he hath paid for them, if he have not day expressly given him to pay for them. But the merchant shall retain the wares until he be paid for them; and if the other take them, the merchant may have an action of trespass, or an action of debt for'the money, at his choice.” We recognize this as sound law to its full extent. ( Shep. Touch., 225,; Long on Sales, Rand’s ed., 262.) The defendants had taken possession of the house, for the purpose of removing it, before they were forbidden, but they had no right to remove it without payment, or tender of payment; their possession for that purpose was, therefore, wrongful, and could not give them a right to proceed to remove the house, against the will of the plaintiff. The plaintiff, at liis choice, brought an action of trespass, and, upon these facts, was entitled to maintain it. We think the charge was erroneous in this respect.

The judgment of the county court reversed, and case remanded.