Ross v. White

| Vt. | Jan 15, 1888

The opinion of the court was delivered by

Ross, J.

The defendant insists upon but two questions in this court.

I. That the plaintiff was not entitled to recover for the watch ornament. When the plaintiff demanded the return of the articles in controversy, the defendant stated as a reason for refusing to return this article that the intestate had given it to him in her life time. The referee finds, that, unless the declaration of the defendant is competent evidence of the fact stated, as a part of the res gestae, he cannot find that the defendant owned this article ; and that the plaintiff should recover therefor. The action is trover; and the gist of the action is the conversion of the property by the defendant. The demand and refusal were evidence bearing upon the question of the conversion of the articles by the defendant. That was the transaction to which this evidence related. Any declaration of the defendant, made in answer to the demand, qualifying his refusal, was admissible, as a part of the transaction then going forward; to wit, whether the defendant’s refusal was conditional or unconditional, and fell short of, as amounted to a conversion of the article. This is clearly shown by the authorities cited by the defendant’s counsel; and we entertain no doubt in regard to the soundness of those decisions. But the declaration then made by the defendant, that the article had been given him by the intestate in her life time, related to a transaction long before concluded, did not accompany the performance of that transaction, the making of the gift, and was a mere narration of his version of a past, and long since completed transaction. It was clearly inadmissible to show the gift itself. State v. Carleton, 48 Vt. 636" court="Vt." date_filed="1876-03-15" href="https://app.midpage.ai/document/state-v-carlton-6580458?utm_source=webapp" opinion_id="6580458">48 Vt. 636, and authorities cited on this subject. Doubtless, some confusion has arisen in decisions, in regard to what declarations are admissible as a part of the res gestee, by not always carefully considering and determining the exact transaction done, or performed, which the declaration accompanied, and whether the declaration properly related to, and qualified that transaction, or narrated an account of an antecedent transaction. When the declaration accompanies and qualifies, or characterizes, the transaction then being performed, it is clearly admissible as a part thereof; but so far as it is a narration of a past and completed transaction, it is inadmissible. Hence the County Court properly allowed the plaintiff to recover for this article.

II. The defendant also contends that the County Court erroneously refused to apportion the costs, under sec. 1451, R. L., which reads: “When an action, pending in a. County or Supreme Court, involves the trial of several and distinct issues, or of several and distinct claims, the court in taxing the costs shall allow to each party the costs accruing upon the issues or claims upon which he prevails.” This section was incorporated into the statute law of the State in 1856, and, in legal effect, has remained unchanged. The only changes are merely verbal, and were made in the revision of 1880. This section of the statute first came before this court for construction in 1865, in Brainerd v. Casey, 37 Vt. 479" court="Vt." date_filed="1865-01-15" href="https://app.midpage.ai/document/brainerd-v-casey-6577856?utm_source=webapp" opinion_id="6577856">37 Vt. 479. The only questions in that case related to costs, and the principal one Avas the construction of this section of the statute. .It seems to have received the careful consideration of the court, and the opinion was prepared by that careful and painstaking judge, Loyal C. Kellogg. It is there held that this section of the statute applies, only when the issues and claims are several and distinct, and has no reference to tbe constituent parts of a single general issue or claim, and to the issues and claims made by the pleadings, and not to those arising on the testimony. This decision has remained unquestioned by the court, and the statute has remained unchanged by the legislature, for over twenty years since the statute was thus construed. Carleton v. Taylor, 50 Vt. 220" court="Vt." date_filed="1877-10-15" href="https://app.midpage.ai/document/carleton-v-taylor-6580735?utm_source=webapp" opinion_id="6580735">50 Vt. 220 and Engrem v. Myers, 54 Yt. 628, enforce the construction placed upon this section of the statute in Brainerd v. Casey, supra. Whether correct or incorrect, the. construction then placed upon this section of the statute is the recognized law of the State, and it would ill become the court to make any change therein. Applied to this case, the County Court properly refused to apportion the costs of the parties in accordance with the issues made by the evidence. The issue made by the pleadings was single, whether the defendant had converted to his use any of the articles named in the declaration which belonged to the plaintiff as administrator. The several articles therein named formed the constituent parts of this single issue made by the pleadings. That issue, the referee has found in favor of the plaintiff, against the defendant.

The judgment is affirmed.