Coolidge v. Ayers

• Decision Date: 02 June 1903
• Citation: 61 A. 40,77 Vt. 448
• Parties: COOLIDGE v. AYERS.
• Court: Vermont Supreme Court

61 A. 40

77 Vt. 448

COOLIDGE

v. AYERS.

Supreme Court of Vermont. Rutland.

June 2, 1903.

Exceptions from Rutland County Court; Munson, Judge.

Trover for a piano by A. G. Coolidge, trustee in bankruptcy of Marvin McClure, against Lamson J. Ayers. A verdict was rendered in favor of plaintiff, and defendant brings exceptions. Affirmed.

It appeared on the trial that some time in the fall of 1899 Marvin McClure, the bankrupt, caused a McPhail piano belonging to said McClure to be placed in the house of the defendant, Ayers, in Windsor, Vt. This piano was not sold to the defendant, but was placed in his house for trial, in the hope of effecting a sale to him. It did appear that a statement regarding the ownership of the piano was made to Ayers at that time, and the question what he understood or ought to have understood about it, in the circumstances, was included in the matters submitted to the jury. In March, 1900, the McPhail Piano Company, to which McClure was largely indebted, requested McClure to turn out to it sundry pianos in the possession of various persons, of which the piano in question was one, in payment of the indebtedness of McClure to said company, and McClure refused to do so. The McPhail Piano Company thereupon informed McClure that it should take the pianos and apply their proceeds on the indebtedness of McClure to it, to which McClure replied that he had no objection, but that he would do nothing— the company must take its chances. In June, 1900, the McPhail Piano Company sent its agent (one Mack) to Windsor, Vt., who then had an interview with defendant, Ayers, in which said Mack represented to Ayers that the McPhail Piano Company was the owner of the piano in question, and Ayers bought the same of the McPhail Piano Company for a valuable consideration, taking a certain writing of transfer, containing the warranty of title recited in the opinion. The amount paid by Ayers to the McPhail Piano Company was $200, and plaintiff's evidence tended to show that the retail value was $350. In January, 1901, McClure was adjudged a bankrupt, and in May, 1901, Coolidge, the plaintiff, was appointed trustee of said bankrupt estate, and, as such, brought this suit to recover the value of the piano, as assets of said estate. This ease has been once before in the Supreme Court. See 76 Vt. 405, 57 Atl. 970. The question in this last case was, among other things, whether Ayers purchased the piano in good faith, without notice, and for a valuable consideration.

Argued before ROWELL, C. J., and TYLER, START, WATSON, HASELTON, and POWERS, JJ.

Butler & Moloney, for plaintiff. C. H. Stebbins, J. C. Enright, and E. R. Buck, for defendant

WATSON, J. The contract of sale under seal, containing a warranty of title from the McPhail Piano Company to the defendant, was introduced in evidence by the defendant. The defendant's testimony on cross-examination tended to show that the company was defending the suit. In connection with this testimony, the plaintiff was permitted to ask defendant, subject to objection and exception, whether he expected that the company would make him good in case the suit went against him; also whether he did not consider the company good for his expenses in and about this litigation, and for any judgment that might be rendered against him therein. Each of these questions was answered in the affirmative. This was not error. Since the contract of purchase introduced in connection with the defendant's testimony in chief contained a covenant that the company would "warrant and defend the title" against all claims, it was proper cross-examination to show the defendant's understanding of his relation to the case under the contract as between him and the company. This testimony, when taken with the other evidence showing defendant's conduct touching the matter since the commencement of this suit, had a bearing on the question whether he took the property in good faith, which was declared to be a material question when this case was previously before this court. 76 Vt. 405, 57 Atl. 070.

The defendant testified in cross-examination that it was a $350 piano, and that he got it for $200. He was then asked, subject to exception, whether $150 was...