Martin v. Eames & Bellows

The opinion of the court was delivered by

Isham, J.

The case of Stone v. Pulsifer et al., 16 Vt. 428, seems quite decisive of the questions which have been raised in this case. It was there held, that when property was sold conditionally, and payments had been made for it by way of services, the services might be charged on book, to await their subsequent application; and if the property sold has been received back by the vendor, the vendee, may recover for his services, in an action on book, before any application has been made.

The sale of the oxen to the plaintiff in this case was conditional; they were to remain the property of the defendants until paid for. The payment of the whole sum was a condition to be fully performed, before the vendee had any title or attachable interest in the property. Smith v. Foster, 18 Vt. 182. The plaintiff took, and under the contract of sale, was to have the immediate possession and use of the oxen, to enable him to deliver the wood which he was to procure in payment for them. The wood for the oxen was to be cut, corded, and delivered, by the time and in a mannex' that would enable the defendants to use it in fulfilling, and to that extent, performing their contract which they had made with the Eailroad Company. As the plaintiff’s contract was not performed, either as to time or quantity, by the 1st of April, 1852, the defendants were not bound to receive the wood; yet his default in this matter might be waived by the defendants, and was so, by receiving the 70 cords of wood which were surveyed about the 15th of April, 1852, and by their disposing of the same under their contract with the Eailroad Company. For that wood, the defendants are accountable to the plaintiff, either by receiving it in payment towards the oxen, or by paying him its value. If the defendants have done no act disaffirming the plaintiff’s right to the cattle, the plaintiff cannot recover in this action. But if they have in any way disaffirmed the contract, or refused to fulfill on their part, by re-taking the possession of the oxen, they must then account in this action, for the wood they have received.

We learn from the case, that in the latter part of March, 1852, the plaintiff permitted the defendants to take the cattle to do some work for their keeping, and while the cattle were in their possession for that purpose, and about a week before the wood was cut and corded, the plaintiff requested of the defendant, Bellows, a return of the cattle to him, which he refused, unless the plaintiff procured other security for the debt, as he had heard the plaintiff was intending to sell them. The defendants were not justified in withholding the cattle from the plaintiff from any apprehension they may have had that the plaintiff had any such object, as no such sale could be made by him, so as to defeat their title to the cattle; neither could they retain them for further security; for that would be imposing new terms and conditions to the contract of sale. The defendants’ refusal to re-deliver the cattle to the plaintiff was, therefore, a denial of the plaintiff’s right to them. It was a disaffirmance of the contract of sale, and of the loan under which the cattle came into their hands, and was an assertion of their right to the custody and control of them. In refusing to let the plaintiff have the cattle under those circumstances, the defendants subjected themselves to pay for the wood they had received of the plaintiff, deducting therefrom a reasonable compensation for the use of the cattle. This was the decision of the county court, and we perceive no error in it.

The subsequent attachment and sale of the cattle by Charles Bellows, as the property of the plaintiff, can have no effect in the case. The attachment was made April 12, 1852, after a demand for the cattle had been made, and after the plaintiff’s right to charge for the wood was fixed; the plaintiff, therefore, had no interest or property in the cattle that could be attached. The attachment was a violation of the right of the defendants for which they have their remedy. In such an action it has been held, that the defendants can-recover the value of the property at the time of the attachment, and that the attaching creditor cannot hold the property even by tendering the amount which the vendee agreed to pay for the property. Buckmaster v. Smith, 22 Vt. 203. Under the decisions in this state, to which we have referred, the defendants are accountable to the plaintiff in this action for the wood which they have received, and the plaintiff is responsible for the use of the cattle in the sums as they have been respectively found by the auditor in each case; and the defendants must look to the persons who took the cattle from them, for their value.

The judgment of the County Court is affirmed.