129 A. 302 | Vt. | 1925
The plaintiff furnished the defendant with flour for use in his bakery business under a consignment contract by the terms of which title to the flour remained in the plaintiff, and the defendant was required to pay for it before he used it. The defendant used 18 barrels of this flour without paying for it. Shortly after, he went into bankruptcy, scheduled this claim as a liability, and in due course was discharged. The plaintiff did not prove his claim or take any part in the bankruptcy proceedings. He brought this tort action in the form of trover, and the defendant answered his discharge as a bar. The trial below was in the Caledonia County municipal court, and the defendant had judgment on facts found by the court. The plaintiff excepted.
The claim is barred by the discharge unless the defendant's use of the flour amounted to a "wilful and malicious injury" to the plaintiff's property, within the meaning of section 17 (2) of the national Bankruptcy Act (U.S. Comp. St., § 9601). On this question, the plaintiff has the burden of proof. Bailey's Admx.
v. Gleason,
If the question before us was a question of fact depending upon an inference to be drawn from facts found, in support of the judgment, we should have to assume that the inference was drawn below in defendant's favor. This would accord with our time-honored rule. But the facts being found, the question here presented is one of law. This sufficiently appears from Tinker v.Colwell, supra, wherein Mr. Justice Peckham says that the averment that the judgment there in question was not recovered for a wilful and malicious injury to *432
the person or property of the plaintiff was "a mere conclusion of law and not an averment of fact." So the question is, Do the facts found, when considered with reference to their legal effect, bring the case within the exception made in the Act? The record admits of one construction only: The defendant deliberately and knowingly appropriated the plaintiff's property without the latter's knowledge or consent; therefore, the discharge in bankruptcy does not bar the plaintiff's claim.McIntyre v. Kavanaugh,
Nor are the plaintiff's rights prejudiced by what took place at the interview with the defendant set forth in the findings. There was then some of the flour on hand, and the plaintiff refrained from taking it, relying upon the defendant's promise to pay up the amount he was in arrear. This was not a waiver of the plaintiff's title or of his rights; it was a mere delay granted on the defendant's promise.
The plaintiff asks for a certified execution. The judgment below being against the plaintiff, this is his first opportunity to move for such an execution, and the motion is properly made to this Court. Darling v. Woodward,
Judgment reversed, and judgment for the plaintiff for $181.43,with interest thereon from May 20, 1924, and costs. Let acertified execution issue. *433
