Green v. Laclair

• Decision Date: 11 October 1915
• Citation: 95 A. 499
• Parties: GREEN v. LACLAIR.
• Court: Vermont Supreme Court

95 A. 499

GREEN

v. LACLAIR.

Supreme Court of Vermont. Caledonia.

Oct. 11, 1915.

Exceptions from Caledonia County Court; Frank L. Fish, Judge.

Action by Lewis I. Laclair against Bert W. Green. Verdict for plaintiff for $300, and defendant excepts. Affirmed in part and reversed in part.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Simonds, Searles & Graves, of St. Johnsbury, for plaintiff. F. W. Baldwin, of Barton, for defendant.

HASELTON, J. The declaration in this case was in two counts. The first count was trover. The defendant claimed and claims that the second was a count for breach of warranty, sounding in contract, and that so there was a misjoinder. Before the trial commenced the defendant moved the court to dismiss the action on the ground of misjoinder. This motion was overruled, and the defendant excepted. But the second count is case for deceit, and not assumpsit, and so was properly joined with the count in trover. It sets out as the gist of the action that the plaintiff was induced to take a chattel mortgage upon certain horses by the false and fraudulent statement that one of the horses was free and clear of all incumbrance, when, in fact, it was not, but was incumbered by a lien due and unpaid, "which was well known to the defendant" when he gave the mortgage to the plaintiff. In the course of the count the defendant is spoken of in one place as warranting the horse to be free of all claims, but the deceit is relied on. The defendant criticizes the scienter as not sufficiently certain in its application, and in other respects. But, however sound or unsound these claims may be, grant that they are all well-grounded, and we still have, not a count in assumpsit, but a count in case for deceit, defective, but amendable. Ballard v. Greene, 87 Vt. 94, 98, 88 Atl. 515; Spear's Adm'r v. Armstrong, 86 Vt. 250, 84 Atl. 817; Davis' Adm'x v. Rutland R. Co., 82 Vt. 24, 71 Atl. 724. Our cases in which is considered the effect of omitting the scienter altogether are not in point.

The defendant raised or attempted to raise this question of misjoinder by a motion to dismiss made at the close of the evidence, and by a motion in arrest of judgment. But, as there was no misjoinder, we do not discuss these motions nor the methods of taking advantage of a misjoinder. The court at some time ordered a verdict for the defendant upon the second count. Under the first count the plaintiff claimed on trial to recover for the conversion of a bay horse and a bay mare. Before the argument commenced, however, the court ruled that there was nothing for the jury under the claim of the conversion of the bay horse, and submitted to the jury only the issue of whether the defendant converted a bay mare, mortgaged to the plaintiff along with two other horses, by selling the mare to one Stanhope without the consent of the plaintiff.

At the close of the evidence the defendant moved the court to direct a verdict for him on the first count on the ground that, in the state of the evidence, there was nothing under that for the jury. The defendant's contentions are that the evidence does not show that the plaintiff had a valid mortgage upon the bay mare at the time of the alleged conversion, and that it appears also that his disposition of her was with the consent of the plaintiff. With reference to this exception the transcript is referred to and is to control, and it is sufficient to say that on the evidence the question of conversion was for the jury.

Upon the question of the value of the mare at the time of the conversion the plaintiff was permitted to testify under objection and exception to her value the last time he saw her, which was about three months before the conversion. This objection raised no other question than that of remoteness, and the determination of that question ordinarily rests in the discretion of the trial court. It so rested in this matter. The mare was about nine years old, and the record before us suggests no unusual happening as to her within the three months referred to. Perkins v. Perley, 82 Vt. 524, 74 Atl. 231; State v. Barr, 84 Vt. 38, 42, 77 Atl. 914, 48 L. R. A. (N. S.) 302; Niles v. Central Vermont Ry. Co., 87 Vt. 356, 360, 89 Atl. 629.

The defendant argues three exceptions to rulings admitting evidence addressed to the second count only. As, however, a verdict was directed for the defendant on that count, we have no occasion to review the rulings.

The questions of chief moment in this case relate to the matter of exemplary damages. The defendant excepted to a ruling of the court that there was evidence in the case warranting the submission to the jury of the question of exemplary damages at all. But the court did not hold with the defendant in respect to this broad claim, and we think the court was right. The selling or otherwise trading off of mortgaged property without the consent of the mortgagee is a matter of serious import, and the jury might have found, from the transaction itself and the circumstances attending it, that the conversion of the bay mare was in reckless and wanton disregard of the rights of the plaintiff, and, if they so found, they could in their sound discretion allow exemplary damages, although the action was trover. Picknell v. Fulton, 89 Vt. 51, 94 Atl. 104; Downing v. Outerbridge. 79 Fed. 931, 25 C. C. A. 244; Harker v. Dement, 9 Gill (Md.) 7, 52 Am. Dec. 670, 676; Inman v. Ball, ...