Hill v. Scott

• Decision Date: 03 October 1928
• Citation: 143 A. 276
• Court: Vermont Supreme Court
• Parties: HILL et ux. v. SCOTT.

143 A. 276

HILL et ux.

v. SCOTT.

Supreme Court of Vermont Orleans.

Oct. 3, 1928.

Exceptions from Orleans County Municipal Court; Frank C. Williams, Judge.

Action in tort for conversion by John E. Hill and wife against Arthur P. Scott. Judgment for plaintiffs, and defendant brings exceptions. Reversed and remanded.

Argued before WATSON, C. J., and POWERS, SLACK, MOULTON, and CHASE, JJ.

Pierce & Miles, of Newport, for plaintiff's.

A. W. Farman, of Newport, for defendant.

MOULTON, J. This is an action in tort for the conversion of certain articles of household furniture belonging to the plaintiffs, and comes before us on exceptions from the municipal court of Orleans county. The trial court found the following facts:

The plaintiffs leased and occupied the defendant's tenement. The rent became in arrears, and the defendant insisted upon payment. The matter was adjusted by the defendants paying a mortgage then covering the plaintiff's household furniture, and taking a bill of sale of the furniture from the plaintiffs as security for the payment of the amount advanced in payment of the mortgage, and the rent then due and to become due up to February 28, 1927, to which time the defendant agreed that the plaintiffs might occupy the tenement. The total amount secured by the bill of sale according to its terms was $247, upon the payment of which the instrument was to be canceled.

On February 28, 1927. there was due on the bill of sale the sum of $185. On March 2, 1927, the balance being unpaid, the defendant and an officer went to the tenement with a writ of replevin for the property described in the bill of sale, but agreed to defer the service of the writ until 3 o'clock in the afternoon upon the promise of the plaintiffs to have the money by that time. Shortly before 3 o'clock the plaintiffs tendered $185 to the defendant, but he refused to accept it, and the officer took possession of the furniture. The writ of replevin had not been served at the time of making the tender, and the tender was thereafter kept good.

Judgment was entered for the plaintiffs, and the case is here on exceptions by the defendant.

The defendant offered to show, as proof that the amount of the tender was not sufficient to release his lien upon the property, that, after the bill of sale had been given, he incurred an expense of $8 in taking over the mortgage upon the furniture, and that the plaintiffs promised to pay him this expense. This evidence was excluded, and rightly so. The offer did not show its materiality to the issue. Gregg v. Willis, 71 Vt. 313, 318, 45 A. 229, and cases cited. The mere fact that the plaintiffs had promised to reimburse the defendant for the expense so incurred had no bearing upon the question of the amount then due upon the debt secured by the bill of sale.

The defendant also offered to show, for the same purpose, that the plaintiffs had agreed with him that his expense incurred in taking over the mortgage should be included with the sum of $247, for which the bill of sale was given, and that the defendant should hold the bill of sale as security for the total amount. The evidence was excluded, and the defendant excepted.

It is urged by the plaintiffs that the offer was insufficient, in that it did not indicate to the trial court that the claimed agreement was made after the execution of the bill of sale. It is true that the time of the agreement was not stated in the offer, but the question just preceding, which plainly related to the same matter, showed that a subsequent parol agreement was expected to appear by the offered evidence. We think that the trial court was sufficiently apprised of the situation, and the exception is for consideration. Cummings v. Connecticut Gen. Life Insurance Co., 101 Vt. 73, 142 A. 82, 85.

That a verbal or written contract not under seal may, generally speaking, be modified by a subsequent verbal agreement, is too elementary a doctrine to require the citation of authorities. The plaintiffs say that the evidence was properly excluded, because the subsequent agreement was without consideration, and that, since the defendant had already bound himself, by the terms of the bill of sale, to assume and pay the mortgage, and, inferentially, to pay whatever expense might be incident thereto, he was only doing what he had already promised to do. In Flanders v. Fay, 40 Vt. 316, 317, it is said:—

"The rule that a verbal agreement entered into between the parties to a simple, contract in writing, before or at the time of the execution of such contract, is not admissible to vary or affect its construction, does not apply where it appears that the oral agreement was made subsequent to the execution of the written agreement, and was upon a new consideration."

But an examination of that case discloses that no question of consideration was before the court. The action was based upon a written contract of lease, and the defendant offered to show that, during the term of the lease, the parties mutually agreed to a certain modification of its terms. The evidence was held to be admissible. No new consideration was, so far as appears, claimed or argued. In Thrall v. Mead's Estate, 40 Vt. 540, 546, 547, the distinction is made between a subsequent agreement made after breach of the original contract, and one made while the original contract remains executory and before breach. In the former case, a new consideration is required; in the latter, not. It may be supposed, therefore, that the court, having in mind the broad doctrine expressed in Flanders v. Fay, was at pains accurately to define its extent and bearing in Thrall v. Mead's Estate, and the latter opinion must be regarded as modifying the former to this extent.

The doctrine so stated is supported by authority, although not unanimously. In Thomas v. Barnes, 156 Mass. 581, 584, 31 N. E. 683, 684, it is said:

"It is well settled that an executory bilateral written contract may be varied by a subsequent oral agreement between the parties. * * * The contract, when modified by the subsequent oral agreement, is substituted for the contract as originally made, and the original consideration attaches to and supports the modified contract."

To the same effect are Easton v. Snyder-Trimble Co., 94 Neb. 18, 142 N. W. 695, 697; Foley v. Marsch, 162 Wis. 25, 154 N. W. 982, 984; Moore v. Markel, 112 Neb. 743, 201 N. W. 147, 149; Earnshaw v. Whittemore, 194 Mass. 187, 191, 80 N. E. 520; Holmes v. Doane, 9 Cush. (Mass.) 135, 139; Hanson & Parker v. Wittenberg, 205 Mass. 319, 326, 91 N. E. 383, 384; Pulpwood Co. v. Perry, 158 Mich. 272, 122 N. W. 552; Stofferan v. Depew, 79 Wash. 170, 139 P. 1084, 1085; Dyer v. Middle Kittitas Irrigation Dist, 25 Wash. 80, 64 P. 1009, 1014; Long v. Pierce County, 22 Wash. 330, 61 P. 142,147; Wisconsin Sulphite Fibre Co. v. Jeffries Lumber Co., 132 Wis. 1, 111 N. W. 237, 241.

The plaintiffs call attention to the fact that the bill of sale was under seal, and urge that the evidence of a subsequent oral agreement is inadmissible in an action upon a sealed instrument, citing Powers v. Rutland R. Co., 88 Vt. 376, 394, 395, 92 A. 463, Flanders v. Fay, 40 Vt. 316, 317, and Sherwin v. R. & B. R. R. Co. 24 Vt. 347, 349. But the contract claimed to be modified is not the bill of sale, which is, by its terms, an absolute conveyance, but the oral agreement that the bill of sale should be held as security only, which made the entire transaction a simple contract (Dana & Henry v. Hancock, 30 Vt. 616, 619), and was, in substance a mortgage valid at common law (Mower, Trustee, v. McCarthy, 79 Vt. 142, 148, 64 A. 578, 7 L. R. A. [N. S.] 418, 118 Am. St. Rep. 942; Rice's Assignees v. Hulett, 63 Vt. 321, 324, 22 A. 75; Gilfillari's Adm'r v. Bixby, 100 Vt. 468, 471, 139 A. 250). It is upon this agreement that the plaintiff bases his right of recovery. Such a contract can be modified by a mutual agreement between the parties, to include a further item in the obligation for which the security is held.

For the same reason the principle that evidence of a subsequent verbal agreement is inadmissible to vary or modify the terms of a contract required to be in writing by the statute of frauds, and actually so reduced to writing (Dana & Henry v. Hancock, supra; Hambleton v. U. Aja Granite Co., 96 Vt. 199, 205, 118 A. 878) does not apply. We hold that the offered evidence was erroneously excluded.

The defendant has briefed several exceptions to the finding of facts, and to the failure of the court to make other findings in certain respects. No transcript of the evidence has been furnished us, and, indeed, the bill of exceptions...