181 A. 100 | Vt. | 1935
The plaintiff sold the defendant an evaporator accepting in payment therefor three promissory notes for $53.33, each. At the time of the sale, a written memorandum evidencing the terms of the sale and providing that the title to the evaporator should remain in the plaintiff until the notes were paid, was executed by the defendant and delivered to the plaintiff. Default having been made in such payment, the plaintiff, acting through a public officer, made demand for the evaporator, and the defendant refused to surrender the same. Thereupon, this suit was brought for a conversion of the property. It was returnable to and tried in the Brattleboro municipal court, without a jury, and judgment was rendered for the plaintiff for the amount due on the principals of the unpaid notes. The defendant excepted. The defendant offered no evidence at the trial, but moved for a judgment on the case made by the plaintiff. In effect, the motion amounted to a demurrer to the evidence, and admitted all the facts which the evidence tended to prove, together with all reasonable inferences that could be drawn therefrom, 64 C.J. 1211.
The grounds of the defendant's motion, as stated in the court below and as argued here, are as follows:
(1) That the plaintiff's evidence failed to show the value of the evaporator at the time of the demand; (2) that, it having appeared that the notes herein referred to had been pledged at a bank for the plaintiff's debt, and it not appearing that the bank had expressly authorized the plaintiff to sue in his own name, the suit should have been brought in the name of the bank, and not in the name of the plaintiff.
1. The first ground of the motion avails the defendant nothing.Eastman v. Jacobs,
2. The claim that the notes in question were pledged to a bank is unwarranted. The only evidence regarding a transfer of the notes is the indorsements that appear upon them. On one of them, no indorsee is named. On the others, the name of the National Bank of Ogdensburgh appears as indorsee. All the indorsements are specified to be "for collection and remittance *403
on our accounts." Such indorsements are restrictive in character, and merely constitute the indorsee an agent of the indorser to collect the debt. Moore v. Louisiana Nat. Bank,
There is no claim that the case is affected by the Negotiable Instruments Act (P.L. 7134 et seq.).
We hold, therefore, that the production of the notes by the plaintiff afforded prima facie evidence of his title thereto, and that the second ground of the motion is unavailing.
The plaintiff says that by inadvertence the interest on the notes was omitted from the judgment, and he asks us to correct this error. But he did not except, and the rule is that, when defendant brings a case here on exceptions which we overrule, we cannot consider errors against the plaintiff to which he did not except at the trial. Wheelock v. Moulton,
Judgment affirmed.