Dale Eastman v. Kenneth Jacobs

• Decision Date: 18 October 1932
• Parties: DALE EASTMAN v. KENNETH JACOBS
• Court: Vermont Supreme Court

162 A. 382

104 Vt. 536

DALE EASTMAN v. KENNETH JACOBS

Supreme Court of Vermont

October 18, 1932

May Term, 1932.

Consideration of Evidence on Exceptions to Findings---Trover and Conversion---Sufficiency of Evidence To Justify Court's Findings as to Disposition of Property---Sufficiency of Findings To Establish Conversion---When Demand and Refusal Need Not Be Shown Prior To Bringing Suit---Damages---Conditional Sale---Agreed Price as Evidence of Value---Sufficiency of Findings To Warrant Close Jail Execution.

1. On exceptions to findings of court, evidence must be taken in light most favorable to findings, and so as to support them if it can reasonably be done.

2. Evidence held reasonably to warrant inference supporting court's finding that conditional buyer had disposed of property prior to seller's suit for conversion thereof against him, rendering demand unnecessary.

3. Finding that conditional buyer had disposed of property prior to seller's suit for conversion thereof against him, held to carry with it implication of active wrongdoing, and to be sufficient to establish conversion.

4. In ACTION OF TORT for conversion, where unchallenged findings showed that defendant would have been unable to surrender property had demand been made therefor, held that no demand and refusal were necessary before bringing suit.

5. General rule of damages in action of conversion is value of property at time of conversion

6. Agreed price as expressed in contract of sale is prima facie evidence of actual value of property.

7. In action of tort by seller against conditional buyer for conversion of property sold conditionally, upon proof of contract of sale naming agreed price, in absence of evidence that actual value was different from agreed price, plaintiff is entitled to recover balance due thereon.

8. In action of tort for conversion of property by conditional buyer, finding that plaintiff had never released property from lien thereon, with other findings, held to justify close jail execution.

ACTION OF TORT for conversion. Plea, general issue. Trial by court at the September Term, 1931, Orleans County, Buttles, J presiding. Judgment for plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Pierce & Miles for the defendant.

Walter H. Cleary for the plaintiff.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

GRAHAM

The action is tort for the conversion of a pair of horses and a set of work harnesses. The trial was by court, resulting in a judgment for the plaintiff. The case is here on defendant's exceptions to certain of the findings and to the judgment.

In March, 1926, the defendant purchased of the plaintiff these horses and harnesses and gave in part payment his conditional sales note for $ 500. When suit was brought in May, 1931, the defendant was in default in his payments and was then owing on the note, principal and interest, $ 309.30. No demand was made for the surrender of the property before the suit was brought but the court finds, "* * * * the defendant had disposed of all of said property prior to that date and would have been unable to surrender the property had demand been made therefore." The finding that "the defendant had disposed of" the property is challenged by defendant's exception that it is not supported by evidence.

The evidence must be taken in the light most favorable to the findings, and will be read so as to support them if it can reasonably be done. Reed v. Hendee, 100 Vt 351, 354, 355, 137 A. 329, and cases cited. The only supporting evidence for the finding is to be found in the testimony of the defendant when called as a witness by the plaintiff. After he had testified that the officer who served the writ upon him made no demand for the property, he was asked: "Did you have the property at that time? A. No Q. And haven't had it at any time since? A. No. Q. So you weren't able to produce it? A. No." Giving the finding the benefit of the favorable rule, and construing the term "disposed of" in its broad and general sense, we think the evidence reasonably warrants the inference to support it. If the defendant had parted with possession of and control over the property without fault on his part, it was incumbent upon him to show it in order to remove the unfavorable inference from his admission. The evidence is meager, to be sure, and might have been made more convincing, but in the circumstances it is sufficient, and the finding must stand.

This finding carries with it the implication of active wrongdoing and is sufficient to establish a conversion. Vermont Acceptance Corporation v. Wiltshire, 103 Vt 219, 228, 153 A. 199, 73 A. L. R. 792; Manley Bros. v. Boston & M. R. R. et al., 90 Vt. 218, 221, 97 A. 674; Hill v. Bedell, 98 Vt. 82, 126 A. 493. Since the unchallenged findings show that the defendant "would have been unable to surrender the property had demand been made therefor," no...