Hildreth v. Fitts

The opinion of the court was delivered by Ross, J.

The defendant excepted to the holding of the County Court, that the evidence showed a sufficient change of possession of the sleigh to protect it from attachment as the property of the vendor. The sleigh was purchased by the plaintiff while it was being stored by Waite, the vendor, with other sleighs and wagons in the cider-mill of Pierce. So long as it remained at that place, there was no change of possession. The vendor hired and had possession of the cider-mill for the purpose of storing his wagons and sleighs. Did what transpired afterward show a change of possession ? Waite’s sleighs and wagons, and this among them, were removed from the cider-mill by Pierce. Knowledge of their removal was carried by Waite to the plaintiff; and the plaintiff thereupon engaged the vendor “ to get some one to move it for him to some place for storage, or- put it under cover, until he could get round and get it, and Waite had his son attend to it, and he moved it to Orcutt’s barn.” The son was working for his father, and had the principal charge of his business in his father’s absence. Orcutt was at home when the sleigh was taken to his barn ; but it was not shown what took place between the son and Orcutt, if anything, at the time the sleigh was moved there. This, in substance, was the evidence to show a change of possession. If the son hired Orcutt’s barn for the plaintiff, and placed the sleigh there for him, thereafter it would be in the plaintiff’s possession, and protected from attachment on the debts of the vendor. Bailey v. Quint, 22 Vt. 464 ; Pettingill v. Elkins, 50 Vt. 431 . To protect the sleigh from being attached as the property of Waite, the burden was upon the plaintiff to show that the barn was in fact hired for him for the purpose of storing the sleigh. The most he shows, is, that he engaged the vendor to get some one to get the sleigh stored somewhere for him. This comes short of *688 showing that the barn was hired of Orcutt for the plaintiff, and in his name, so that when the sleigh was placed there, it was put into his possession. If the agency of the son for the plaintiff in the transaction was not disclosed to Orcutt, Orcutt would have the right to infer that he was acting for his father, the vendor, or for himself- If an agent does not disclose his principal, he binds himself as well as his principal, and the person dealing with him, may hold the agent to the fulfilment of the contract, or, when the agency becomes known, look to the principal therefor. Hence, in determining to whom Orcutt rented his barn for storing the sleigh, it became material to show whether the son disclosed his agency, if he acted in fact in that capacity, in the transaction. To give the possession of the barn for storing the sleigh, in fact to the plaintiff, Mr. Orcutt must have understood he was renting to him. The officer, when about to attach property in the apparent possession of a person other than the defendant in the writ, is both bound to observe and inquire. He is to observe the fact that it is in the apparent possession of such third person, and to inquire whether such apparent possession by such third person is in his own right, or the right of some person other than the defendant in the writ. The apparent possession of such third person would indioate prima facie that he was the owner. Inquiry might reveal that his apparent possession was the actual possession of some other one than himself, possibly the defendant in the writ. The purchaser, to protect himself against an attachment of the property bought on the debt of the vendor, if he place the property in the apparent possession of a third person, must leave it there, under such circumstances that the attaching officer can by inquiry learn whose possession his apparent possession is. Nor, do we think, such officer is bound to inquire beyond the person in whose apparent possession he finds the property. If he was bound to inquire beyond the person having the control of the property, and to follow up every clue from person to person, and from place to place, which such third person might be able to give him, the property might be spirited away before he could gain any reliable information as to whether he could safely attach it on the writ, and the ends of justice be defeated. *689 No decision has yet been made that held the officer to inquire beyond the person who had the property in his control. From the nature of the duty of the officer, and from the duty of the purchaser to effect a change in the possession of the property purchased from the vendor to himself, the third person, having the control of the property purchased, must understand that he holds the control for, and that his possession thereof is the possession of, the purchaser. Otherwise there is no apparent, open change of possession, available to the creditor, or the officer making the attachment. As the evidence did not show, as the plaintiff was bound to show, that Orcutt’s apparent possession of the sleigh, was the possession of the plaintiff, rather than that of the vendor, the County Court were in error in holding that the uncontradicted evidence showed a sufficient change of possession of the sleigh, to prevent its attachment on the debt of the vendor. The evidence tended to show that the son of the vendor was told by his father to move and place in storage the sleigh for the plaintiff, but fell shoi't of showing that he did so.

The evidence of the declaration of the vendor made after the time he testified he had sold the sleigh, that the sleigh was his, was properly excluded. He was not a party to the suit, and his declarations could not be shown as admissions. The only purpose for which they could legitimately have been shown, would be to impeach his credibility as a witness. But, to lay the foundation for their introduction for that purpose, he should have been inquired of, when on the stand, as a witness, in regard thereto, under the rules pertaining to the use of such testimony. The evidence of the cost to manufacture the several parts of the sleigh, in aid of the witness’s judgment of its value at the time of the conversion, was properly admitted. Any evidence was admissible on the question of damages, which legitimately tended to show what its value was at that time. But we think the court erred in excluding testimony of what it sold for at the sheriff’s sale. The question to be determined was, its cash, market value at the time of the conversion. What it sold for, near that time, at a regular sheriff’s sale, advertised, and made under the guards and restrictions which the law throws round such sales, would at least have *690 a tendency to show its then cash, market value. If the plaintiff had been present and purchased the property, what he paid would have been the measure of his damages, unless perchance he might have lost something by having been deprived of the use of it. Hurlbert v. Green, 41 Vt. 490 . Mr. Greenleaf, in his work on Evidence, vol. 2, s. 648 says: “ Where the property has not been restored, the general measure of damages is the value of the thing taken, to which the jury may, in their discretion, add interest on the value ; and if the goods have been fairly sold under authority of law, the amount realized by the sale will ordinarily be taken as their true value.” Any genuine sale of the property fairly made, near the time of the conversion, we understand 'may be given in evidence on the question of damages.

The judgment of the County Court is reversed, and the cause remanded.