Andrew F. Hill v. A. J. Bedell

• Decision Date: 07 October 1924
• Citation: 126 A. 493,98 Vt. 82
• Parties: ANDREW F. HILL v. A. J. BEDELL ET AL
• Court: Vermont Supreme Court

126 A. 493

98 Vt. 82

ANDREW F. HILL v. A. J. BEDELL ET AL

Supreme Court of Vermont

October 7, 1924

May Term, 1924.

ACTION OF TORT for conversion of mortgaged property. Plea, general issue. Trial by jury at the September Term, 1922, Orleans County, Willcox, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Porter Witters & Longmoore for the defendants.

Dutton & Morse for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

SLACK

The action is tort for the alleged conversion of certain personal property which the defendants had previously mortgaged to the plaintiff. The plaintiff had a verdict and judgment below, and the case is here on defendants' exceptions.

At the close of all the evidence, the defendant, A. J. Bedell, Jr. moved for a directed verdict as to him on the ground that the case "was barren" of evidence that he sold disposed of, or otherwise converted the property, which motion was denied and he had an exception.

While there was no evidence that he, himself, actually sold or disposed of any of the property, that was not necessary to charge him with liability. If it was disposed of at his instigation, or if he aided or assisted therein ( Moore v. Eldred, 42 Vt. 13; Clark v. Whitaker, 19 Conn. 319, 48 A. D. 160; D. M. Osborne & Co. v. Plano Mfg. Co., 51 Neb. 502, 70 N.W. 1124), or benefited thereby (Western Union Tel. Co. v. Franklin Construction Co., 70 N.H. 37, 47 A. 616), he was guilty. If he assented, though only tacitly, to a disposition of it which he knew placed it beyond the reach of the mortgagee, he did aid and assist in such disposal. That he, at least, assented to a disposal of all, or the major part, of it the evidence clearly tended to show. It tended to show that he was a part owner of the property; that when the mortgage was given, and during all the time it was outstand- ing he resided with his father, the other defendant, on the latter's farm where the property was kept; that he helped about carrying on the farm, taking care of the stock, milking, etc.; that the milk from the mortgaged cows went to the creamery in his name, and that he bought and sold other cows that were kept on the farm and commingled with those covered by the mortgage. This was sufficient to justify the jury in finding that he assented to, or sanctioned, the conversion. Hence, the motion was properly denied.

The evidence of both the plaintiff and the officer who foreclosed the mortgage tended to show that on a certain occasion the latter made a demand of the property on both defendants and also, a refusal by both to deliver. On cross-examination, the plaintiff testified that he did not hear any conversation on that occasion between the officer and the defendant, A. J. Bedell, Jr., and the officer testified that he had no recollection of any conversation between him and that defendant at that time. The court charged the jury, in substance, that if they believed from the evidence that the officer said to both defendants what the plaintiff's evidence tended to show that he did, and the defendants understood that a delivery of the property was demanded, the officer made such a demand as the law required; and that if the defendants said anything on that occasion which they intended the officer to understand to be a refusal to comply with such demand the jury might treat such refusal as evidence of a conversion. This part of the charge was excepted to by the defendant, A. J. Bedell, Jr., on the ground that...