Barrett v. Kellet

• Decision Date: 16 July 1894
• Citation: 66 Vt. 515,29 A. 809
• Court: Vermont Supreme Court
• Parties: BARRETT v. KELLET.

29 A. 809

66 Vt. 515

BARRETT

v. KELLET.

Supreme Court of Vermont. Franklin.

July 16, 1894.

Exceptions from Franklin county court; Thompson, Judge.

Action by Julius Barrett, assignee of O. R. Swett, insolvent, against B. F. Kelley, to recover damages for conversion of personal property. Judgment was rendered for plaintiff, and defendant excepts. Reversed.

In the spring of 1892, O. R. Swett was engaged in the meat business at St. Albans, Vt. April 30 of that year, he gave to a traveling agent of E. C. Morris & Co., of Boston, Mass., an order for a safe, in the following words and figures: "Boston, Mass., April 30, 1892. E. C. Morris & Co., Boston, Mass.: Please ship one No. 13 safe, tire proof, to O. R. Swett, town of St. Albans, county of Franklin, state of Vermont, for which I agree to pay the sum of seventy-five dollars on demand, after receipt of safe, as per back of this order. The safe remaining the property of E. C. Morris & Co. until deferred payments or notes are paid in full, and as such shall be protected from all claims whatsoever until this contract is fully complied with. In default of payment as agreed, the safe to be returned (if demanded) without legal process, expense, or trouble to you, and any payments made to be held for use of safe. This order and agreement, when accepted by E. C. Morris & Co., in Boston, shall take effect as a contract made and executed in the state of Massachusetts. This order constitutes and contains the only agreements made with you or your salesman in relation thereto, and the party signing same hereby waives all claims of verbal or other agreements not embodied on the face or back of this order. Nothing but shipment, delivery, or notification in writing constitutes an acceptance of this order by E. C. Morris & Co. [Signed] O. R. Swett." On end of order: "This order subject to E. C. Morris & Co.'s approval, and it is distinctly understood and agreed that this order shall not be countermanded by the maker or makers of the same. Safe to be delivered on cars at their warehouse or factory. St. Albans, Vt."

Morris & Co. received and accepted the order at Boston, and shipped the safe from there to Swett, who received it at St Albans, May 10, and put it into his store, where it remained until taken by the defendant. August 11, 1892, Swett filed his petition on insolvency. August 22 he was adjudged an insolvent, and the plaintiff appointed his assignee. August 24 the plaintiff attempted to take possession of the...