E. H. Mason v. George Sault

• Decision Date: 07 October 1919
• Citation: 108 A. 267,93 Vt. 412
• Parties: E. H. MASON v. GEORGE SAULT
• Court: Vermont Supreme Court

108 A. 267

93 Vt. 412

E. H. MASON v. GEORGE SAULT

Supreme Court of Vermont

October 7, 1919

May Term, 1919.

ACTION OF TORT for the conversion of a mare. Plea, the general issue. Trial by jury at the December Term, 1918, Orange County, Stanton, J., presiding. At the close of plaintiff's evidence both parties moved for a directed verdict, and the Court directed the jury to return a verdict for the plaintiff. Judgment on the verdict. The defendant excepted. The opinion states the case.

Judgment affirmed.

H H. Blanchard, H. G. Tupper, and Chas Batchelder for the defendant.

March M. Wilson for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

TAYLOR

The action is trover for the conversion of a mare. The trial was by jury resulting in a directed verdict for the plaintiff, and the defendant brings exceptions.

The plaintiff introduced evidence tending to show that the defendant executed and delivered to him a mortgage of the mare in question to secure the payment of a promissory note of even date therewith; that the mortgage was duly recorded; that the mare was, at the time the mortgage was executed, in the defendant's possession, and so remained until some ten months later, when, without leave or knowledge of the plaintiff, the defendant sold her at public sale to a person residing at Montpelier, Vermont, receiving and retaining the purchase price. It was in evidence that the plaintiff had not demanded possession of the mare of the defendant. The defendant introduced no evidence, but rested at the close of the plaintiff's evidence, and moved the court for a directed verdict on the ground that there was no evidence of a demand by the plaintiff. While the defendant's motion was pending, the plaintiff moved that a verdict be directed in his favor, whereupon the court directed the jury to return a verdict for the plaintiff. The defendant was allowed exceptions, both to the overruling of his motion and to the granting of the plaintiff's motion.

The defendant waives the exception to the overruling of his motion for a directed verdict by not briefing it. Nor does he contend in his brief that the evidence did not make a case for the plaintiff. His sole claim under the latter exception is that it is for the court to direct such a verdict as in its judgment the evidence requires only when it affirmatively appears that neither party wishes to go to the jury, and that he did not waive his right thereto by moving for a directed verdict in his favor.

The mere fact that a party moves the court to direct a verdict in his favor does not amount to a waiver of the right, if such he has, to have the case submitted to the jury. Such a motion is in the nature of a demurrer to the evidence of the adverse party and challenges his right to go to the jury; but the moving party does not thereby concede that the case should be taken from the jury and submitted to the court on the evidence. Seaver v. Lang, 92 Vt. 501, 510, 104 A. 877. The province of the court on such a motion is pointed out in Bass v. Rublee, 76 Vt. 395, 400, 57 A. 965. It does not follow, however, that the court erred in directing a verdict for the plaintiff. In stating his claim the defendant overlooks an important prerequisite to the right to go to the jury. If there is no conflict in the evidence nor any dispute as to the facts, there is nothing for the jury. The only questions to be determined upon the evidence are then questions of law, which can be determined only by the court. St. Johnsbury v. Thompson, 59 Vt. 300, 311, 9 A. 571, 59 Am. Rep. 731. The evidence tended to support the complaint and admittedly made a prima facie case for the plaintiff. The defendant offered no evidence, so there was no issue of fact to be determined by the jury, and it was the plain duty of the court on motion to direct a verdict for the plaintiff.

On motion by the plaintiff at the time of rendering judgment, and solely upon consideration of the evidence introduced on the trial, the court found and certified as follows: "It is found and adjudged from the evidence in this case that the cause of action in said case arose from a wilful and malicious injury done by the defendant to the personal property of the plaintiff, and that said defendant ought to be confined in close jail." The defendant was allowed an exception to this certificate, and now contends that the evidence did not justify such a finding. The finding was evidently phrased with a view to its effect upon a possible discharge in bankruptcy. The question for decision then depends upon the proper construction to be given the provisions of the Bankruptcy Act excepting certain provable debts from the operation of such a discharge. Wellman v. Mead, 93 Vt. 322, 107 A. 396, 404. See also Larrow v. Martell, 92 Vt. 435, 104 A. 826.

The act declares that a discharge in bankruptcy "shall release a bankrupt from all his provable debts, except such as * * * are liabilities * * * for wilful and malicious injuries to the person or property of another." The mare in question was the property of the plaintiff in contemplation of this exception. It does not appear whether or not the condition of the mortgage had been broken, but at least the general title was in the plaintiff. The mortgage operated as an absolute sale by the defendant to the plaintiff subject to the right to redeem according to the terms of the contract. Mower v. McCarthy, 79 Vt. 142, 148, 64 A. 578, 7 L.R.A. (N.S.) 418, 118 Am. St. Rep. 942. It passed the general property to the plaintiff; and if the condition of the mortgage should not be duly performed, the whole title would then vest absolutely at law in the plaintiff, subject to the defendant's right in equity to redeem. Thompson v. Fairbanks, 75 Vt. 361, 370, 56 A. 11, 104 Am. St. Rep. 899; Wood v. Dudley, 8 Vt. 430. His possession, even, was permissive and not a matter of right. McLoud v. Wakefield, 70 Vt. 558, 43 A. 179. It follows that he had no better right to sell the animal and appropriate the proceeds of the sale to his own use than he would have had to thus dispose of any other of plaintiff's property that might come into his possession permissively. It remains to consider whether the unauthorized sale of the mare, in the circumstances disclosed in the evidence, was "a wilful and malicious injury" thereto within the meaning of the Bankruptcy Act.

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