70 Vt. 424 | Vt. | 1898
There were nine exceptions reserved on trial.
(1) The ninth relating to the admission of the statutes of New Hampshire relating to interest and usury is waived.
(3) An exception was taken to the charge in regard to the check for $200.
The testimony of the defendants tended to show that'an arrangement was made in Rhode Island that the plaintiff should advance the defendant Ames the sum of $4000 upon the note in suit, but that the plaintiff sent him, Ames, cheques for $3800 only, Moore, who was then acting for the plaintiff, taking the cheque for $200. The court charged,
(4) The exception taken in regard to. the effect of the payment of a certain sum for the extension of the time of payment of the note for thirty days, did notchangenor affect the situs of the original contract. No change was made in any of its terms save the time of payment, none in the rate of interest, none in the place of payment. It is like a case in which security is given in one state upon a loan made in another and it is held that taking security does not necessarily alter the locality of the contract; or a contract made in one country subject to a condition to be performed in another in which the law is different and it is held that the law where made governs because the condition when fulfilled refers back to the time of the contract.
(5) Another question was made with reference to the removal of eight certain piles of lumber. The testimony tended to show the lumber was being injured in the place where it was then piled, that the defendant Ames caused the lumber to be removed, without the consent, knowledge, or authority of the plaintiff, to another part of the mill yard many rods away, with other piles not covered by the mortgage and that the piles removed were not marked as required, to indicate that they were covered by the mortgage. This was done to prevent injury to the lumber from water and subsequently it was burned. The court charged if
(6) Two exceptions were reserved in regard to the-admission of testimony tending to showing the facts in. relation to the lumber being damaged where originally piled, their situation in respect to water and their liability to-damage. From what is said under the preceding point it follows that the testimony was properly admitted to show the situation of the piles removed and their liability to damage in case they were not removed.
(7) The remaining question was reserved in regard to the-conversion of twenty-one thousand feet of lumber taken from three piles that were covered by the plaintiff’s mortgage. Testimony tended to show that the workmen of Ames ■ delivered it to Anderson who took the property and used it. That subsequently Ames, upon ascertaining the fact, replaced it with green lumber. This was done without the consent or knowledge of the plaintiff and the testimony tended to show that it was done by mistake. The court instructed the jury that if the defendant took some of the property and after-wards replaced it in such a manner and under such circumstances that the plaintiff would have the benefit of that replacement, such replacement would go in mitigation of the-
Judgment affirmed.