Smith v. Wood

63 Vt. 534 | Vt. | 1891

The opinion of tlie court was delivered by

START, J.

A conditional vendee of a chattel has a special property therein until it is sold at public auction in the manner provided by No. 93, Acts of 1881. He is entitled to the possession of the chattel until it is taken by a public officer for the purpose of such sale, and may maintain an action of trover against a conditional vendor who takes and sells the property-contrary to the provisions of that act. Roberts v. Hunt, 61 Vt. 612; Calkins v. Clement, 54 Vt. 635.

In Roberts v. Hunt, supra, it was held, that the remedy given by No. 93, Acts of 1881, must be followed; that this is the vendor’s only remedy at law; that a conditional vendee of a chattel has a special property therein, coupled with a right of possession for thirty days after breach of condition; and that he may maintain trespass or trover against a vendor who takes and sells a chattel at private sale. It necessarily follows from this construction, that the vendee’s special property in the chattel continues until it is sold at public auction in the manner provided in that act; and that he is entitled to its possession until it is taken by a public officer for the purpose of such sale. The cart in question was not taken by a public officer or sold at public auction, but was sold by the defendant at private sale.

We hold, that the plaintiff had a special property in the cart at tl¡e time of the sale, coupled with a right of possession until such time as the same should be taken from him by a public officer, for the purpose of selling the same as is provided in No. 93, Acts of 1884; that the sale by the defendant was wrongful; and that the action of trover is an appropriate remedy.

As the damages were not ascertained in the court below, the case must be remanded.

Judgment reversed and cause remanded.