Towner v. Bliss

51 Vt. 59 | Vt. | 1878

The opinion of the court was delivered by

Royce, J.

This is an action of trover brought to recover for certain millinery goods. Pleas, the general issue, and a special plea in bar.

The special plea admits that the goods described in the declaration, with other goods, were sold by the plaintiff to Abbott, and that the plaintiff reserved a lien on them to secure the payment of the purchase-money, and that the contract evidencing the lien was seasonably recorded in the town cleric’s office, and justifies the taking of the goods by the defendant on the 11th day of October, 1876, as constable, on a writ of attachment in favor of Boutelle against Abbott, and avers that this suit was commenced on the 14th of October, 1876, and that the plaintiff did not notify Boutelle before the commencement of this suit of the amount of the purchase-money remaining unpaid, and give him ten days in which to pay the same. The replication to this plea alleges that Boutelle and the defendant had actual notice of the recorded lien on the goods declared for, and the amount due thereon, before taking and converting them. To this replication there was a demurrer.

The demurrer admits all the facts that it was necessary for Boutelle and the defendant to be in possession of, to enable them to make a tender of the amount due. The right of a creditor to attach property in the possession of a conditional vendee is given by s. 28, c. 83, of the Gen. Sts. ; and the duty of the creditor, to make such an attachment available, is defined by said section —he must pay or tender to the vendor, his agent or attorney, the amount remaining unpaid of the purchase-money, within ten days after notice of the amount due ; and in sec. 30 of the same chapter it is provided that if the vendor shall refuse to accept such tender, and shall commence and prosecute any suit on account of such attachment, the defendant may, on the trial of such suit, and under the general issue, give such tender in evidence, in bar of such action. The vendor’s right of action is not suspended by the statute for the ten days in which the attaching creditor is permitted to pay or tender the amount due, but, if he brings suit before the expiration of the ten days, he takes the risk of having his action defeated by a tender. It has always been held that an attaching creditor must comply with the requirements of the statute, to obtain any benefit from such an attachment. Hefflin v. Bell, 30 Vt. 134 Fales v. Roberts, 38 Vt. 503; Duncan v. Stone, 45 Vt. 118.

There nqt having been any payment nor tender in this case, there was no legal defence shown, and the judgment is affirmed.