Summary
Trespass for a quantity of pine boards. Plea, the general issue, and trial by jury, September Term, 1849, — Bennett, J., presiding.
The plaintiff, as constable of the town of Colchester, had attached the boards in question as the property of one Myers, and the defendant, after the attachment, had taken them and converted them to his own use. It appeared, that the logs, from which the boards were sawed, were drawn by the defendant to the saw mill at Winooski Falls in March, 1847, and were then his property; and the question was, whether the lumber had been sold by the defendant to Myers, so as to subject it to attachment upon his debts.
It appeared, that in March, 1847, the defendant and Myers bargained for the sale of a quantity of lumber to Myers, and went together to the saw mill, where the logs lay, and selected certain logs, from which Myers was to have his lumber, and they were marked, in chalk, with the initials of Myers’ name; and it was agreed, that Myers should have the boards sawed from these logs, at the measurement of the sawyer, as he should measure them after they were sawed, at $19,00 per thousand feet.; and the defendant directed the sawyer to saw the logs as Myers should direct; and they were to be sawed at the defendant’s expense. The evidence on the part of the defendant tended to prove, that it was at the same time agreed, that Myers should not take the lumber from the mill yard, until he had paid for it.
The evidence on the part of the plaintiff tended to prove, that the lumber was sawed, by the procurement and at the expense of the defendant, in March, or early in April, 1847, and that, while the sawyer was sawing it, Myers, in the absence of the defendant, removed the principal part of the lumber away from the mill yard, some six or eight rods, and piled it in an open space near a building in part occupied by him; and that he found fault with the mill measure, saying to the sawyer, and to one Talcott, who was in the employment of Cole, after he had removed a part of the lumber, that he would not take it at the mill measure, as he was dissatisfied with the manner in which it was measured; and that he at the same time sent word by the sawyer and by Talcott to the defendant, that he would not take it at the mill measure, on account of his dissatisfaction with the measure; and that the next morning after he had sent such word to the defendant, which was at evening, the residue of the lumber, consisting of one or two logs, was sawed, and Myers removed it and piled it with the other, saying at the same time, that he would not take it at the mill measure, on account of dissatisfaction with the measurement.
The defendant’s testimony tended to prove, that in the evening, when Myers sent such word to the defendant, who lived about two miles from the mill, a portion of the lumber lay in the mill and -by the side of it, as it had been thrown out by the sawyer, and that the defendant, the same evening, sent his clerk to Myers for the pay for the lumber; that Myers refused to pay for it, and the clerk communicated this to the defendant the same evening, and at the same time Talcott informed the defendant, that Myers had told him he would not take the lumber at the mill measure; that the defendant there■upon directed Talcott to go to the mill the next morning and remove and pile up the lumber, and to tell Myers, that he could not have it; that Talcott did so inform Myers, — but that when he arrived at the mill Myers had removed a part of the lumber and piled it at the place where it was, when attached by the plaintiff, and was then moving the residue, and said at the same time, that he would not take it at the sawyer’s measure; and that Talcott, after this, assisted Myers in loading some of the lumber, and Myers removed it and placed it with the other, where the whole remained until attached by the plaintiff in July, 1847.
The defendant offered to prove, that when his clerk called upon Myers for the pay for the lumber, as above stated, Myers said to him, that when the defendant “ furnished lumber according to contract, he would pay for it.” To .this eyidence the plaintiff objected, and it was excluded by the court.
The plaintiff gave evidence tending to prove, that all the lumber in question had been measured by the sawyer, at the mill, before it was removed, and the mill measure marked upon the boards, and that the defendant had been furnished with the sawyer’s measurement, and had charged the amount upon his book to the defendant, at the price agreed upon, and that the charge continued thus upon his books until some time after September 9, 1847, when it was altered and the words “ not delivered ” written under it. The defendant took and sold the lumber September 8, 1847.
The defendant requested the court to charge the jury, that in order to have the removal by Myers operate as a delivery, to vest the property in Myers, it must have been done with an intention on the part of Myers to accept it at the measurement, as it had been measured by the sawyer; and that if any thing remained to be done, to ascertain the quantity, the property did not vest in Myers ; and that if it was the intention of Myers, at the time he removed the lumber, to have it measured before he accepted it, no property vested in him by such removal; that if the jury should find, that the contract was, that Myers should not have the lumber, until it was paid for, or if they did not find, that any agreement was made as to the time of payment, the removal by Myers, before payment, was tortious, and no property thereby vested in Myers; that as the property was conceded to have been the defendant’s, it was necessary for the plaintiff to show a complete sale and delivery to Myers, — and that there must have been a possession taken by Myers, with the knowledge and consent of the defendant; that if the jury should find, that Myers objected to receiving the lumber at the measure, at which the defendant claimed he should receive it, and the parties never came to an agreement upon this point, and disagreed as to it after the lumber was removed, no property vested in Myers; that it was competent for the defendant, if the lumber was not sold in the log, but was to be measured and delivered after it was sawed, to object to its delivery, even though Myers claimed the lumber according to the contract, — and that in that event no property passed, and the defendant would only be liable for breach of contract to Myers; or, if they should find the contract rescinded, the plaintiff could not recover.
The court charged the jury, that if the original contract between Myers and the defendant, for the sale of the lumber, had been rescinded by the parties to it, the plaintiff could not recover; that it was competent for the parties to the contract to put an end to it at any time before the attachment, if it were done by their mutual understanding and consent; but that it was not competent for either one of the parties to do it without the consent of the other; and that it was for the jury to inquire, from the whole testimony bearing upon this point, whether in fact the parties did rescind the contract.
In regard to the delivery of the lumber the court instructed the jury, that it is a general principle, that when property is bargained and sold, but not on time, the delivery of the property by the vendor and the payment of the purchase money by the vendee are concurrent acts; and that, when there is no agreement for time, it is of course to be taken as a cash sale; — that in the present case it appeared by the defendant’s evidence, that it was agreed, in express terms, that the lumber was not to be delivered, until paid for ; but that the defendant might, if he thought proper, waive the payment, and deliver the lumber without exacting payment down, and if he did so, he could not afterwards assert such right and urge it as a reason, why the property did not pass to Myers, so as to subject it to attachment; and that if, from all the testimony bearing upon this point, — the court referring the jury to it, — the jury found, that the defendant had delivered the lumber to Myers, waiving his right to demand payment at the time, or, after Myers had taken possession of the boards, when sawed, and removed them from the mill yard, had acquiesced in his having the possession without having paid the purchase money, and treated the lumber as being in Myers’ control, under the contract, the verdict should be for the plaintiff, but otherwise for the defendant.
In regard to the damages the court charged the jury, that, if they found for the plaintiff, the rule of damages would be the value of the lumber at the time it was taken by the defendant; and that they might, in their discretion, add to the value the interest upon it from the time it was taken to the time of trial, but were not bound to do so.
Verdict for plaintiff. Exceptions by defendant.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
