Allen Lumber Company v. E. Higuera

• Decision Date: 14 February 1913
• Citation: 85 A. 979,86 Vt. 453
• Parties: ALLEN LUMBER COMPANY v. E. HIGUERA
• Court: Vermont Supreme Court

85 A. 979

86 Vt. 453

ALLEN LUMBER COMPANY v. E. HIGUERA

Supreme Court of Vermont

February 14, 1913

January Term, 1913.

TROVER for lumber. Plea, the general issue. Trial by court at the March Term, 1912, Washington County, Waterman, J., presiding. Judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Theriault & Hunt for the defendant.

J Ward Carver for the plaintiff.

Present ROWELL, C. J., MUNSON, WATSON, HASELTON, and POWERS, JJ.

OPINION

HASELTON

This is an action of trover. The case was heard by the court and on facts found judgment was rendered for the plaintiffs and a certified execution was awarded. The defendant excepted.

The Allen Lumber Company is a partnership engaged in the lumber business. In July, 1910, the defendant purchased of the plaintiffs some lumber. He asked for credit but that was denied on the ground that as he was a stranger to the plaintiffs the sale, if made, must be a cash transaction. The defendant told the partner with whom the business was done that if the latter would send the lumber to a place in Montpelier where the defendant was building a house he would pay cash. The plaintiffs sent the lumber and it was paid for as agreed. Later a second sale of lumber was consummated between the parties.

Some days afterwards the defendant came to one of the plaintiff firm and asked for a third bill of lumber and that it be sold him on credit. But the plaintiff firm again refused credit and said the sale must be a cash transaction, whereupon the defendant said he had the money at the house and that he would pay cash the same as before when the lumber was received at the house. The lumber was sent but the defendant did not pay for it. In a few days the partner with whom the business had been done on the part of the firm called on the defendant about the matter and the defendant said his boy was not there but that he would send the money as soon as the boy came. The defendant did not send it and the partner, referred to, called again when the defendant said the order was not complete, that there were some balusters which he had not received. The plaintiffs furnished the balusters and the defendant said he expected some money soon and would pay. The plaintiffs told him they must have the money or the lumber. Again in a few days they told him the same thing. The defendant proceeded to use the lumber in building his house and did not pay and never has paid for the lumber in question. The court below found and held that the lumber did not become the property of the defendant, that he had no right to use the same and that by using it as he did he converted it to his own use and become liable in this action for the value of the lumber which was found to be $ 221.97.

These facts were found by the court, reduced to writing and signed by the judges as the statute requires, and the exceptions recite that thereon the court adjudged the defendant guilty and rendered judgment against him for the sum named with costs and on motion granted a certified execution. The exception taken is thus recited: "To all of which defendant excepted."

This exception does not raise the question of the sufficiency of the evidence to sustain any particular finding. Landon v. Hunt, 82 Vt. 322, 73 A. 865.

The defendant does not claim that it does, but on various grounds claims that the findings are insufficient to sustain the judgment.

It is claimed and argued that a demand and refusal were essential to establish a conversion and that a demand for the lumber or the money was not a sufficient demand. But here a demand was not necessary, for the findings recite that the defendant had used up the lumber, and a demand is not required when it would necessarily be futile where there is no power to restore, when there has been actual conversion. Chitty, Pl 170; Crampton v. Valido Marble Co., 60 Vt. 291, 302, 303, 15 A. 153, 1 L. R. A. 120; Merrill v. Bullard, 59 Vt. 389, 8 A. 157; Tinker v. Morrill, 39 Vt. 477, 480, 94 Am. Dec. 345.

This is upon the principle that the law never requires the performance of a vain or useless act. The transaction in question was a sale for cash on delivery, and the title with the right of immediate possession remained in the plaintiffs unless they had waived their right to treat the sale as a cash transaction. Turner v. Moore, 58 Vt. 455, 3 A. 467; Drake v. Scott, 136 Ala. 261, 33 So. 873, 96 Am. St. Rep. 25; Tyler v. Freeman, 57 Mass. 261, 3 Cush. 261; Howard v. Haas, 131 Mo.App. 499, 109 S.W. 1076; Paulson v. Lyon, 26 Utah 438, 73 P. 510; Berlaiwsky v. Rosenthal, 104 Me. 62, 71 A. 69; Dudley v. Sawyer, 41 N.H. 326; Hammett v. Linneman, 48 N.Y. 399; Benj. Sales (7th ed.) 270, 271, 298, 299; 2 Kent's Comm. 496, 497.

In the case of a sale for cash on delivery, the delivery and payment are, in contemplation of law, concurrent, and the doctrine that without payment the property will not pass even though it be actually delivered into the hands of the buyer is very generally recognized.

In Turner v. Moore, 58 Vt. 455, 3 A. 467, there was a cash sale of tombstone which the testimony tended to show was delivered at a cemetery where it remained for two or three days, and that then the seller had some conversation with the purchaser during which he asked for a lien on the stone which was refused. Becoming apprehensive that he would not get his pay the seller reclaimed the stone and carried it back to his shop, and was thereupon sued by the purchaser who recovered judgment, but the judgment was reversed, for this Court said: "If the contract was for the sale of the stone, and there was no agreement that time should be given the plaintiff, in which to make payment, it was a cash sale, and no title would vest in the plaintiff until she paid or tendered the money. The court told the jury that if the stone was delivered to the plaintiff, the title vested in her and she became the owner. We think they should have been told that if they found it a cash sale, title would not vest until payment or tender of payment." The court commented upon the fact that the seller asked for a lien upon the stone and considered that, in the circumstances, it had no tendency to show that the sale was not a cash transaction, but rather that it evinced the seller's unwillingness to give credit to the purchaser.

If there was a waiver here by the plaintiffs the sale became a sale on credit and title passed to the defendant. But a waiver involves both knowledge and intent. Webster v. State Mutual Fire Ins. Co., 81 Vt. 75, 69 A. 319, and here it cannot be said as matter of law that there was an actual consent on the plaintiffs' part to give credit nor, in the circumstances, that the plaintiffs' conduct was such that the intent necessary to a waiver must be attributed to them.

In discussing the question of waiver the defendant makes free reference to the transcript. The finding of facts says "The entire transcript of ...