Elizabeth Paska Et Al v. Bert H. Saunders

• Decision Date: 07 January 1931
• Parties: ELIZABETH PASKA ET AL v. BERT H. SAUNDERS ET AL
• Court: Vermont Supreme Court

153 A. 451

103 Vt. 204

ELIZABETH PASKA ET AL v. BERT H. SAUNDERS ET AL

Supreme Court of Vermont

January 7, 1931

Special Term at Rutland, November, 1930.

Chattel Mortgages---Status of Oral Agreement between Mortgagee and Mortgagor Permitting Sale of Mortgaged Animals and Substitution of Others---Waiver of Mortgage Security---Witnesses---Competency of Survivor to Contract or Cause of Action Where Other Party Dies---G. L 1891---"Other Party" "Contract in Issue"---To Whom Restriction in G. L. 1891 Applicable---Extent of Right To Meet and Explain Testimony of Living Witnesses Produced against Survivor to Contract or Cause of Action---Admissibility of Testimony as to Verbal Mortgage by Surviving Mortgagee Sued in Trover---Merger of Oral Agreement in Subsequently Executed Chattel Mortgage as Rendering Evidence of Oral Agreement Immaterial---Harmless Error---Trial---Order of Proof---Presumption as to Exercise of Discretion---Necessity of Affirmative Snowing of Abuse of Discretion---Proof of Arrest Not Admissible for Impeachment---Inadequate Briefing---Discretion of Court as to Scope and Extent of Cross-Examination---Objection on Grounds of Irrelevancy and Immaterially---Remarks of Counsel---Effect of Allowance of Exception Thereto---Error Not Shown To Have Been Prejudicial---Chattel Mortgage as Sale---Right of Possession of Mortgaged Property---Status of Title after Condition Broken---Trover and Conversion---Sale of Mortgaged Property by Mortgagee at Private Sale after Condition Broken---Right to Increase of Mortgaged Animals---Jury Question---New Trial---View of Evidence on Defendants' Motion To Set Aside Verdict---Actual Possession as Prima Facie Sufficient To Maintain Action of Trover---Motion To Set Aside Verdict as Contrary to Evidence---Discretion of Court---Waiver.

1. At common law, verbal agreement between mortgagee and mortgagor permitting latter to sell cattle covered by mortgage provided he replaced them with cattle of equal kind and value, is valid as between parties.

2. At common law, verbal agreement between mortgagee and mortgagor permitting latter to sell cattle covered by mortgage provided he replaced them with cattle of equal kind and value, unless rights of third persons have intervened, is valid as against all persons upon mortgagee taking seasonable possession of mortgaged property.

3. Verbal agreement between mortgagee and mortgagor, permitting latter to sell cattle covered by mortgage provided he replaced them with cattle of equal kind and value, is waiver of security of mortgage so far as purchasers from mortgagor are concerned.

4. Verbal agreement between mortgagee and mortgagor, permitting sale of mortgaged cattle upon condition that they be replaced with cattle of equal kind and value, is a verbal mortgage on substituted cattle, and does not involve modification of sealed instrument by subsequent verbal agreement.

5. G. L. 1891, providing that, where one of parties to contract or cause of action in issue is dead, other party cannot testify in his own favor except to meet or explain testimony of living witnesses produced against him, and section immediately following, are exceptions to general rule of competency, and in their origin were provisos of statute having for its object removal and not creation of disqualifications, hence should he given construction which inclines towards competency.

6. Term "other party" as used in G. L. 1891, providing that, where one of parties to contract or cause of action in issue is dead, other party cannot testify in his own favor except to meet or explain testimony of living witnesses produced against him, refers to other party to original contract or cause of action, and not necessarily to other party to record.

7. In such statute, "contract in issue" means same as "contract in dispute" or "in question," relating as well to substantial issues made by evidence as to merely formal issues made by pleadings.

8. Restriction in G. L. 1891 as to testimony of one party to contract or cause of action in issue where other party is dead applies equally whether surviving party is plaintiff or defendant.

9. Under G. L. 1891, restricting testimony of one party to contract or cause of action in issue where other party is dead, surviving party may meet or explain testimony of living witnesses produced against him, and also any legitimate inferences deducible therefrom.

10. In ACTION OF TORT against mortgagee for alleged conversion of deceased mortgagor's cattle, where testimony of living witnesses for plaintiff showed possession of cattle in question in plaintiff and a taking, apparently without justification, by defendant, held, that latter to meet this testimony, was competent witness as to verbal mortgage to him on cattle by deceased.

11. Exclusion of testimony as to oral agreement that title to cattle should remain in seller until paid for, held without error, where such agreement was merged in subsequently executed chattel mortgage.

12. Where witness testified without objection that he was administrator, subsequent exclusion of certified copy of his letters of administration, if error, held harmless, since excepting parties had substantial benefit of excluded evidence.

13. In action of tort, exclusion of evidence on cross-examination of plaintiff to show that she was arrested on charge of illegal possession of intoxicating liquor, and that release from her to defendant was given in consideration of defendant going her bail, held without error, where exclusion was on ground that matter should be proved as part of defendant's case.

14. Order of proof lies in discretion of trial court.

15. Contrary not appearing, Supreme Court will assume that ruling on order of proof was made as matter of discretion.

16. In absence of affirmative showing of abuse of discretion, ruling on order of proof will not be disturbed.

17. Proof of an arrest is not admissible to discredit witness, even though a party.

18. Mere repetition of what was said in taking exception in trial court is an inadequate presentation of point in Supreme Court.

19. Mere claim that ruling was error, without citation of authorities or support of point by agreement, is inadequate briefing.

20. Where plaintiff, who was unable to read English, claimed that she signed release not knowing its contents, and her daughter testified on direct examination that she did not read release to plaintiff as claimed by defendants, exclusion on cross-examination of daughter of question as to when she had first told her attorney that she had not read release, held not to show an abuse of the court's discretionary power to supervise scope and extent of cross-examination.

21. To sustain objection on ground of immateriality, it must appear that evidence was clearly irrelevant.

22. In action of tort for conversion of cattle by mortgagee, on issue whether release was obtained from plaintiff by duress, evidence that, after taking cattle, defendant threatened to take away and sell horses on place, to plow under crops unless she moved away, and that he prowled around house at night and discharged firearms, held properly admitted over objection that it was irrelevant and immaterial.

23. Allowance of exception to remark of counsel in examination of witness is in effect ruling that remark was proper.

24. Allowing an unwarranted, derogatory remark of counsel in examination of witness, concerning witness, to go unwithdrawn and unrebuked, held error.

25. Where prejudice from unwarranted, derogatory remark of counsel in examination of witness, concerning witness, did not affirmatively appear, error will not cause reversal.

26. Chattel mortgage operates as an absolute sale, subject to right to redeem in accordance with terms of contract, and passes general property to mortgagee.

27. Possession by mortgagor of property covered by chattel mortgage is permissive only, and not of right.

28. In absence of stipulation in mortgage to contrary, mortgagee of personal property has right to take it into possession, even though no part of debt secured thereby has become due.

29. After condition broken, whole title to personal property covered by mortgage vests absolutely in mortgagee, subject only to right in equity to redeem, mortgagee having right to perfect title by taking possession of property.

30. Mortgagee cannot be made liable in trover for selling mortgaged cattle at private sale after condition broken, in view of fact that whole title was then vested absolutely in him.

31. Where defendants were content to have case submitted to jury on certain theory, they cannot urge in Supreme Court that such theory was erroneous.

32. Mortgagee, having general property in cows originally covered by mortgage, as between himself and mortgagor has same right to increase that he had to original animals, since progeny of animals belongs to owner of female.

33. In action of tort for conversion of cattle by mortgagee, question whether certain cattle taken by mortgagee were increase of cows originally mortgaged would be for jury, if there was any evidence tending to support or justify such conclusion.

34. On defendant's motion to set aside verdict, on ground that there was no legal evidence to support it, evidence must be taken in light most favorable for plaintiff.

35. In action of tort for conversion of cattle by mortgagee, held that it could not be said as matter of law that certain cattle taken by mortgagee were increase of cows originally mortgaged, leaving question for jury.

36. Actual possession of personal property is enough prima facie to sustain an action of trover against any one except true owner, or one connecting himself with true owner.

37. Motion to set aside verdict as contrary to evidence is addressed to...