Henry H. Rogers v. James A. Whitney

• Decision Date: 03 January 1917
• Citation: 99 A. 419,91 Vt. 79
• Parties: HENRY H. ROGERS v. JAMES A. WHITNEY
• Court: Vermont Supreme Court

99 A. 419

91 Vt. 79

HENRY H. ROGERS v. JAMES A. WHITNEY

Supreme Court of Vermont

January 3, 1917

November Term, 1916.

REPLEVIN for two horses. Plea the general issue. Trial by court at the June Term, 1916, Windsor County, Slack, J presiding. Judgment, on the facts found, for the defendant to recover his costs with an order that on failure of the plaintiff to pay to the defendant the sum of $ 32.80 and the costs, the plaintiff should return the horse to the defendant. The plaintiff excepted. The opinion states the case.

Judgment reversed and judgment for the plaintiff.

Charles Batchelder for the plaintiff.

R J. Trainer and D. A. Pingree for the defendant.

Present: MUNSON, C. J., WATSON, HASELTON, POWERS, and TAYLOR, JJ.

OPINION

POWERS

The Johnson & Fifield Company, the defendant in interest, was a dealer in horses at West Lebanon, N.H. It sold two horses to one Barney Levett, who was also a dealer in horses and resided at Hartford, Vt. These sales were made at different times, and on each occasion the Company took from Levett a lien note providing that the horse sold and described should remain the property of the Company until the note was paid. These lien notes were seasonably recorded in the office of the town clerk of Hartford. At the time of these transactions the Company knew that Levett was a horse dealer, that he had no use for horses, and that he intended to resell these particular horses,--and made no objection thereto. The Company had previously sold him several horses which were handled in the same way.

At some time prior to July 6, 1914, Levett sold the horses in question to one Copeland, who on that day sold them to the plaintiff who had no actual knowledge of the lien notes. As a part of the purchase price, the plaintiff gave Copeland a negotiable promissory note for $ 425, payable in installments. This note went into the hands of the Johnson & Fifield Company of which fact the plaintiff had due notice and on June 5, 1914, he went to the office of the Company at West Lebanon and paid the $ 425 note. The Company was then informed and fully understood that this note had been given for the horses described in the Levett notes, and it took the plaintiff's money and surrendered the Copeland note saying nothing about having liens on the horses under the Levett notes. Later on, a representative of the Company, accompanied by the defendant, an officer, called upon the plaintiff, demanded payment of the Levett notes, and this being refused, seized the horses thereunder. Thereupon, this action of replevin was brought. The court tried the case below and on its findings rendered judgment for the defendant to recover his costs. At the plaintiff's suggestion, the court made an order that unless the plaintiff paid the defendant the sum of $ 32.80, which was the balance due on the Levett notes after applying the avails of the Copeland note, and his costs, the horses replevied should be returned to the defendant.

1. The Levett lien notes were admitted in evidence subject to the exception of the plaintiff based upon the claim that the descriptions of the property therein were too uncertain to be good against him, an innocent purchaser. The descriptions do not essentially differ, and we need to refer to one only. It is as follows: "This note is given for dark brown gelding, 22 load 25, No. 958, six years old, weight 1,300 star. This day conditionally sold and delivered by Johnson & Fifield Co. to Barney Levett. " Such a description is sufficient,--at least prima facie. We agree with counsel that in this respect these liens stand like chattel mortgages, concerning which the rule is that the description will be sufficient if it points out the property with such degree of certainty as will enable a third person by its aid, together with the aid of such inquiries as the instrument itself suggests, to identify it. Kimball v. Sattley, 55 Vt. 285, 45 Am. Rep. 614. Discarding all else, the liens before us describe the property by age, sex and color; and prima facie this is sufficient. Shum v. Claghorn, 69 Vt. 45, 37 A. 236. The liens were therefore admissible. We need not stop here, however; not only do these liens give the particulars named, but they refer to weight and marks, and finally they clinch the whole matter by specifying the horses as the ones sold and delivered to Levett on the respective days the notes were given. The...