Coburn v. Drown., 926.

• Decision Date: 02 January 1945
• Docket Number: No. 926.,926.
• Court: Vermont Supreme Court
• Parties: COBURN v. DROWN.

40 A.2d 528

COBURN

v.DROWN.

No. 926.

Supreme Court of Vermont.

Jan. 2, 1945.

Exceptions from Orleans County Court; Stephen S. Cushing, Judge.

Action of tort for conversion by Homer B. Coburn against Warran B. Drown. To the ruling of the court, excluding certain evidence and to direction of a verdict for defendant, plaintiff took exceptions.

Judgment reversed and cause remanded.

Hubert S. Pierce, of Newport, for plaintiff.

Raymond L. Miles, of Newport, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

JEFFORDS, Justice.

This is an action of tort for conversion. The material facts relating to the main question are not in dispute.

In August, 1943, the plaintiff purchased 25 cattle from Leon Regan and gave the latter a check for $1,500 as the purchase price. The plaintiff was not in a position to take the cattle at the time of the purchase, so Regan agreed to keep them for a few days. During the time that Regan kept the cattle for the plaintiff no steps were taken to indicate any change in their ownership. The day before the plaintiff was to come to the Regan farm to take the cattle the defendant purchased the same cattle from Regan and gave a check for $1,550 for them. Within a few minutes of the time he received the check Regan told the defendant that Coburn had bought the cattle. After the receipt of this information the defendant took the animals from the Regan farm. The fair value of the cattle at the time they were so taken exceeded the amount for which they were sold to the plaintiff.

The plaintiff is here on exceptions taken to the ruling of the court excluding certain evidence and to the direction of a verdict for the defendant. The offered evidence tended to show that the defendant was informed by telephone of the previous sale of the cattle prior to the time they were taken from the Regan farm by the defendant. The evidence was excluded on the ground that it was immaterial as the second sale had been consummated before the telephone conversation took place. The ground of the motion for a directed verdict was that there was no evidence in the case that the defendant had any notice of the transaction between Coburn and Regan previous to the time the defendant bought the cows and paid for them.

The plaintiff in order to maintain this action was required to prove that at the time the defendant took the cattle he (the plaintiff) had the right to the immediate possession of the animals. Nemie v. Todd, 89 Vt. 502, 506, 96 A. 14. Whether the plaintiff had such a right depends on whether the transaction between Regan and the defendant conveyed a valid title to the cattle to the latter.

Under our law the retention of possession of the cattle by Regan, the vendor, made the sale to Coburn fraudulent in law, or per se, as to creditors of Regan or as to bona fide purchasers without notice. This rule of law is so well settled as to require no citation of authorities. For illustrative cases see Foss v. Towne, 98 Vt. 321, 324, 127 A. 291, and Daniels v. Nelson, 41 Vt. 161, 98 Am.Dec. 577.

It is apparent that the trial court and counsel for the defendant took the position that the giving of the check for the cattle before notice of the prior sale made Drown a bona fide purchaser of the animals so that it was immaterial that he received such notice before the cattle had been delivered to him.

The plaintiff's position was, and is, that Drown is not entitled to the rights of a bona fide purchaser as he had notice of the prior sale before he had received possession of the cattle. The plaintiff in support of his position relies on P.L. § 7950 (sec. 25 of the Uniform Sales Act), which reads as follows: ‘Where a person having sold goods continues in possession of the goods, or of negotiable documents of title to the goods, the delivery or transfer by that person, or by an agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving and paying value for the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner * * * to make the same.’

Our search of the cases reveals none which has directly construed this section of the Sales Act on this point. This may be due to the fact that the language of the section is so plain and unambiguous in meaning as to leave no room for construction. Hooper v. Kennedy, 100 Vt. 376, 379, 138 A. 778. Moreover, as this statute is not susceptible of two meanings, there is no occasion to examine it in the light of common law principles. Brammall v. Larose, 105 Vt. 345, 350, 351, 165 A. 916. It follows that P.L. 7950 is to be given the meaning that its words clearly import. Thus in order for one to be a bona fide purchaser entitled to the protection of the statute the subsequent purchaser must both receive possession of and pay value for the goods before notice of the prior sale.

P.L. 7950 governs the case and if it changed in any way our common law rule in respect to the essentials necessary to constitute this defendant a bona fide purchaser, a matter which we do not in any way decide, the change was brought about by the clear and unambiguous language required to make changes by statute in the common law. State v. Sylvester, 112 Vt. 202, 207, 22 A.2d 505, and cases there cited.

The defendant in his brief claims that the case is governed by P. L. 7951 (section 26 of the Sales Act). This section pertains to the rights of creditors of a vendor who has retained possession of the goods which he has sold. As far as it appears from the record Drown was not a creditor of Regan.

The cattle...