John E. Hill Et Ux. v. Arthur P. Scott

• Decision Date: 03 October 1928
• Citation: 143 A. 276,101 Vt. 356
• Parties: JOHN E. HILL ET UX. v. ARTHUR P. SCOTT
• Court: Vermont Supreme Court

143 A. 276

101 Vt. 356

JOHN E. HILL ET UX. v. ARTHUR P. SCOTT

Supreme Court of Vermont

October 3, 1928

May Term, 1928.

Trial---Immaterial Evidence---Sufficiency of Offer of Evidence To Apprise Court of What Was Expected To Appear---Contracts---Modification by Parol---Consideration for Agreement as to Modification of Contract---Specialty or Simple Contract---Modification of Contract Relating to Bill of Sale as Security for Indebtedness To Include Other Obligation---Agreement as Common Law Chattel Mortgage---Sufficiency of Exceptions To Raise Question as to Court's Findings---Excluded Evidence Not for Consideration in Determining Correctness of Court's Findings---Tender Must Include Accrued Costs---Effect of Insufficient Tender---Erroneous Finding as to Officer Not Having Made Service of Writ of Replevin until Tender of Amount Due---Commencement of Service of Replevin Writ---Trover and Conversion---Finding Not Justified by Evidence---Failure To Find Fact Established by Evidence as Error---Necessity of Stating Grounds of Exception to Judgment.

1. In action for conversion of certain household furniture, for which plaintiffs had given a bill of sale to defendant to secure money advanced by latter to pay mortgage on such furniture and for rent owed by plaintiffs to defendant, where, after plaintiffs had tendered balance remaining unpaid on bill of sale, defendant caused goods to be taken into possession by officer under writ of replevin held that evidence offered by defendant as proof that amount of tender was not sufficient to release his lien on property because after bill of sale had been given, defendant had incurred an expense of $8 in taking over mortgage on furniture, which plaintiffs promised to pay, was properly excluded as immaterial, since fact that plaintiffs had promised to reimburse defendant for expense so incurred had no bearing upon question of amount then due upon debt secured by bill of sale.

2. In such action, offer of evidence by defendant, for same purpose, that plaintiffs had agreed with defendant that expense incurred by him in taking over mortgage should be included with sum for which bill of sale was given and that defendant should hold bill of sale as security for the total amount, held to indicate to trial court, sufficiently, when taken in connection with question just preceding, that a subsequent parol agreement was expected to appear by offered evidence, making exception for consideration.

3. A verbal or written contract not under seal may, generally, be modified by a subsequent verbal agreement.

4. A subsequent oral agreement, modifying original contract, but made subsequent to its breach, requires a new consideration but such an agreement, made while original agreement remains executory and before its breach, requires no additional consideration, the original consideration attaching to and supporting modified contract.

5. Oral agreement that bill of sale, which was under seal, and by its terms an absolute conveyance, should be held as security only, made entire transaction a simple contract, and was a mortgage valid at common law.

6. Oral contract that bill of sale, under seal and by its terms an absolute conveyance, should be held as security only, may be modified by a mutual agreement between parties to include a further item in obligation for which security is held.

7. When no transcript of evidence is furnished ordinarly exceptions to findings of court, and to failure of court to find, predicated upon what is claimed to be undisputed evidence, would not be for consideration, but where bill of exceptions sets out tendency of evidence on each side, and contains statement that evidence therein stated was all that was material to questions raised by exceptions, such exceptions will be considered by Supreme Court.

8. Evidence offered and excluded, even though erroneously, cannot be taken into consideration in determining whether court's findings are correct.

9. Where officer having replevin writ had commenced service thereof, by taking property into his possession before tender was made, he was entitled to his costs, and such costs should have been included in the sum tendered.

10. An insufficient tender, even though paid into court, is of no effect.

11. In action for conversion of certain household furniture, for which plaintiffs had given a bill of sale to defendant to secure money advanced by latter to pay mortgage on such furniture and for rent owed by plaintiffs, where defendant had caused an officer to take such goods into possession on a replevin writ, finding which in effect means that service of replevin writ was not commenced until after plaintiffs had made tender of amount due on bill of sale and tender had been refused, held contrary to evidence.

12. An officer may commence service of replevin writ by taking possession of property, for purposes of appraisal, before taking bond required under G. L. 2110, and delivering property to plaintiff.

13. In action for conversion of certain household furniture taken by writ of replevin under bill of sale securing payment of money advanced by defendant to plaintiffs to pay mortgage on such furniture and for rent owed by plaintiffs to defendant, finding which, in connection with other expressions used by court, meant that no service whatever of writ of replevin had been made at time tender of amount due on bill of sale had been made, held not justified by evidence.

14. In such action, failure to find that property described in writ was included in bill of sale, held erroneous.

15. Where defendant excepted to judgment as rendered, but record failed to show that grounds for exception were stated, held that it did not reasonably indicate to trial court fault found with ruling, and for that reason was not for consideration by Supreme Court.

ACTION OF TORT for conversion of certain household furniture. Plea, general issue. Trial by Orleans County municipal court, Frank C. Williams, Municipal Judge, presiding. Judgment for plaintiffs. The defendant excepted. The opinion states the case.

Judgment reversed, and cause remanded.

A. W. Farman for the defendant.

Hubert S. Pierce and Raymond L. Miles for the plaintiff.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and CHASE, JJ.

OPINION

MOULTON

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 defendant's 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 cancelled.

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 three o'clock in the afternoon upon the promise of the plaintiffs to have the money by that time. Shortly before three 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 General Insurance Co., 101 Vt. 73, 80, 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...