Capital Garage Company v. Powell

• Decision Date: 20 November 1922
• Citation: 118 A. 883,96 Vt. 227
• Parties: CAPITAL GARAGE COMPANY v. MAX L. POWELL
• Court: Vermont Supreme Court

118 A. 883

96 Vt. 227

CAPITAL GARAGE COMPANY v. MAX L. POWELL

Supreme Court of Vermont

November 20, 1922

October Term, 1922.

ACTION OF CONTRACT. Pleas, the general issue and a special plea. Trial by jury at the March Term, 1922, Washington County Wilson, J., presiding. At the close of the plaintiff's evidence the court directed a verdict for the defendant. The plaintiff excepted. The opinion states the case.

Judgment reversed and cause remanded.

H C. Shurtleff for the plaintiff.

Max L. Powell, Hale K. Darling, and John W. Gordon for the defendant.

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

OPINION

SLACK

This is an action of general assumpsit to recover money which the defendant has collected on accounts plaintiff claims to have owned, and the value of certain personal property of the plaintiff's which it is claimed the defendant has converted to his own use. The trial was by jury.

At the close of the plaintiff's evidence the court, on motion, directed a verdict for the defendant to which the plaintiff saved an exception. This exception presents the first question for review. In disposing of it the evidence must be viewed in the light most favorable to the plaintiff.

The evidence fairly tended to show that the plaintiff, a Vermont corporation, for many years prior to November, 1919, conducted a general garage business in a building located on Court Street in the city of Montpelier; that its capital stock was divided into eight hundred shares of $ 10 each; that early in November, 1919, George H. Almon and Ernest F. Dillon, the then owners, in equal amount of all of said stock, sold and transferred the same to the Burnell-Faulkner Company, a Maine corporation then licensed to do business in this State, and each took in part payment of his stock a promissory note of the Burnell-Faulkner Company secured by a pledge of four hundred shares of the capital stock of the plaintiff; that the Burnell-Faulkner Company took possession of the building theretofore occupied by the plaintiff, together with the personal property, consisting of machinery, automobile accessories, supplies, et cetera, and continued the business under the name of the plaintiff until January 22, 1920, when it ceased to do business in this State; that thereafter, but under what arrangement did not appear, the Burnell-Faulkner Company, a Massachusetts corporation, incorporated January 22, 1920, and licensed to do business in this State on or about April 12, 1920, carried on business at the same place and under the name of the Capital Garage Company until October 15, 1920, when, being indebted to the defendant, who was one of its directors, in a large amount, it assigned, or attempted to assign, to him, all of its accounts receivable at its Burlington and Montpelier branches, and such of its other assets, including fixtures, machinery, and merchandise at the places named, as the defendant might select, sufficient to pay his indebtedness; that the defendant took possession of the building, and personal property therein, January 1, 1921, and carried on the business until the following September, when he turned it over to Kenney and Chase under an agreement that they would make an inventory of the property, and pay for it "after the winter's business"; that the inventory was made, but that no price was ever agreed upon for the property and nothing was paid for it; that September 22, 1921, there being a balance due and unpaid on the Almon and Dillon notes, they caused the stock which they held for the purpose above stated to be sold, Almon buying the stock pledged to Dillon, and Dillon buying the stock pledged to Almon; that at some time after the defendant took possession of the property, and before this suit was brought, the plaintiff made demand on him for the possession of all the property then in his hands and he refused to deliver the same or any part of it. The evidence tended to show further that when Almon and Dillon sold their stock to the Maine corporation, they reserved all of the book accounts then due that belonged to the plaintiff, and agreed to pay certain bills which it owned; that most of the machinery, and some of the other property, in the garage when the Maine corporation took possession, was still there at the time this suit was brought; that at some time, the date not appearing, two or three thousand dollars worth of automobile parts were shipped to Springfield, Massachusetts, in an auto truck which was in charge of one of the Burnell-Faulkner Company's employees; that during the time that the defendant was in control of the business, he collected about $ 2,200 on accounts, and auto accessories and supplies were sold whenever there was an opportunity, and on one occasion some oil was taken to Burlington; that defendant added to the stock from time to time, but did not keep it good; that in trying to negotiate a sale of the business to Landry and Currier in November, 1920, the defendant represented that he owned the business. The evidence also tended to show the value of some of the property in existence when this suit was commenced.

It is not apparent upon what ground this action can be maintained for the tangible property that came into the possession of the defendant. Assumpsit will not lie for the wrongful detention of personal property nor for the wrongful conversion of it unless it appears that money or its equivalent has been received therefor. Scott v Lance, 21 Vt. 507; Stearns v. Dillingham, 22 Vt. 624, 54 A. D. 88; Winchell v. Noyes, 23 Vt. 303; Kidney v. Persons, 41 Vt. 386, 98 A. D. 595; Saville, Somes & Co. v. Welch, 58 Vt. 683, 5 A. 491. And while the law...