Nye v. Daniels

Rowell, C. J.

The contract under which the plaintiff claims title to the sewing-machine in question, was made with The Singer Manufacturing Co., by Wm. McLaughlin, Manager. It acknowledges the receipt of $17.00, and says that “there yet remains $43.00 to' be paid” by the plaintiff before she “will complete the payments called for by the lease,” which she agrees to pay at the rate of $3.00 a month until paid. Coupon receipts were to be given for the payments, and “when they amount to $43.00, the lease will be fully satisfied.” The machine is to remain the property of the company, and not to be removed from its then present location without the permission of its St. Johnsbury office, and on failure of the plaintiff to keep her agreement, the company has the right to “repossess the machine,” and a discount of ten dollars was to be made for payment in five months.

We quite agree with the trial Court that this is a conditional sale and not a lease, as it affects to be. The obvious intent and meaning of the contract is, that when it is “fully satisfied” by payment of the $43.00, the machine shall be and remain the property of the plaintiff, free from the company’s interest therein.

But as the contract gives the company the right to take possession of the machine on failure of the plaintiff to pay as *84 agreed, the defendant has the same right, as he has bought the company’s interest in the machine and the contract, and thus has become subrogated to its rights. Hence the decisive question is, whether the plaintiff had fully paid for the machine in a way to bind the defendant, before he took it, as she claims, or whether there was then a balance due, as the defendant claims. But this question was not submitted to the jury, as the Court directed a verdict for the plaintiff because the company did not sell the machine according to the statute, and therefore was guilty of a conversion in selling to the defendant, and the defendant guilty in taking possession. But this was error, for by selling to the defendant as it did, the company was not guilty of a conversion, as it did not take possession, nor exercise other dominion or control, of the property. A conditional vendor can sell his interest in the property and the contract, subject to the rights of the vendee, which he does not disturb, the same as one may in like manner sell his interest in any other property. Thorp v. Robbins, 68 Vt. 53 , 33 Atl. 896 , is analogous.

It was error to admit the receipt of payments purporting to be signed by McLaughlin as manager, as there was nothing to show that he signed it.

The plaintiff’s testimony at the opening of her case that she owned the machine, became immaterial and harmless when the contract was put in and made the basis of recovery.'

The Court was right in refusing to compel the postmaster to testify whether the plaintiff sent a registered letter through his office to the Singer Co. at Burlington in February, 1898. By Sec. 462 of the “Postal Laws and Regulations” of 1893, then in force, the witness wias forbidden to furnish that information, under penalty of removal. That regulation had the force of law, it not being inconsistent therewith, as it was authorized by Sec. 161 of the Revised Statutes of the United States, by which the head of each department is authorized to *85 prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, etc. United States v. Eliason, 16 Pet. 291 ; Landram v. United States, 16 Ct. Claims, 74; Gratiot v. United States, 4 How. 80, 117 ; United States v. Ormsbee, 74 Fed. Rep. 207; In Re Hirsch, Id. 928; Hickey v. Huse, 56 Me. 493 .

Judgment reversed and cause remanded.