Ingalls v. Vance

• Decision Date: 30 September 1889
• Citation: 18 A. 452,61 Vt. 582
• Parties: C. H. & A. L. INGALLS v. VERNON V. VANCE
• Court: Vermont Supreme Court

18 A. 452

61 Vt. 582

C. H. & A. L. INGALLS v. VERNON V. VANCE

Supreme Court of Vermont

September 30, 1889

MAY TERM, 1889.

Judgment reversed, and judgment for plaintiffs for one cent damages and costs.

George W. Cahoon, for the plaintiffs.

OPINION

ROYCE

The stock sought to be replevied in this case is claimed by plaintiffs under a mortgage of unquestioned validity and by defendant under an alleged lien for its keeping, founded on No. 91 Acts of 1884. This act is almost identical in language with Pub. Stat. of Mass., chap. 192, s. 32; a statute which has recently received a careful consideration and interpretation by the Supreme Judicial Court of Massachusetts in a case presenting, in this feature of it facts almost precisely similar to those of the case at bar. We refer to the case of Howes v. Newcomb 146 Mass. 76, 15 N.E. 123. Such a statute as there stated is in derogation of the common law and should be strictly construed. That the law implies no such lien is recognized in this State in the cases of Cummings, Admx. v. Harris, 3 Vt. 244, and Wills v. Barrister, 36 Vt. 220.

The title to this property was in the mortgagees at the time it was placed by the mortgagor in charge of the defendant, and to maintain a lien under the statute the latter should be required to show that the property was brought to his premises or placed in his care by, or with the consent of, the owner. It is contended that such consent should be inferred from the fact that plaintiffs allowed the stock to remain in defendant's care and keeping after learning that it had been placed there by the mortgagor. It is possible that such consent might be inferred from this fact as would constitute the basis of a personal claim against them for the price of such keeping; but to say that it should operate to create the statutory lien, to the impairment of the mortgage security, would be to give the statute a forced and liberal, not by any means a strict construction.

Neither can it be said that a consent, such as would satisfy the statute, to the stock being placed in the defendant's care can be implied from the circumstances of the transaction; and upon this point we cannot do better than to quote at some length from the language of Knowlton, J., in Howes v. Newcomb, supra. * * * "It is not contended that the plaintiff expressly agreed to the horses being placed in the defendant's care. But undoubtedly an implied consent will answer the requirement of the law; and in every case of this kind, the inquiry is whether such implied consent is found. That depends when animals are left with a mortgagor by a mortgagee, not only upon the terms of the express contract relating to them, but also upon all the circumstances...