Watson v. Goodno

Lien for purchase money. Not in writing. Certified execution. 1. As between the vendor and vendee an agreement that personal property shall remain the property of the vendor until the purchase price is paid is binding, though not in writing, and the vendor may maintain trover for an unauthorized disposal of the same. 2. In such case, upon the finding of the referee that the vendee disposed of the property without the consent of the vendor, the court may adjudge that the cause of action arose from the wilful and malicious act of the defendant and grant a certified execution.

Trover for the conversion of a horse. Heard upon the report of a referee at the September term, Washington county, 1892, Rowell, J., presiding. The court gave judgment for the plaintiff and further adjudged, upon the facts reported by the referee, that the cause of action arose from the wilful and malicious act of the defendant, and that a certified execution should issue. To the action of the court in both these particulars the defendant excepted. The referee reported that the plaintiff had sold the defendant the horse upon the agreement that he was to have a lien for the purchase price, and that a written agreement was drawn up but never signed-; and that subsequently the defendant disposed of the horse without the consent of the plaintiff. Nothing was reported as to the manner or circumstances under which the horse was disposed of by the defendant. The report showed no act from which wrongful intent or malice upon the defendant’s part could be inferred, hence the court erred in granting a certificate upon the facts found. Stowe v. Powell, 46 Vt. 471; Styles v. Shanks, 46 Vt. 612 ; Whiting v. Dow, 42 Vt. 262 ; Soule v. Austin, 35 Vt. 515 ; Eobinson v. Wilson, 22 Vt. 35. The granting of a certificate is discretionary with the trial court. Hill v. Cox, 54 Vt. 627 ; Melindy v. Sfaulding, 54 Vt. 517 ; Boutwell v. Harriman, 58 Vt. 516.