Kennett v. Tudor

• Citation: 81 A. 633,85 Vt. 190
• Parties: KENNETT et al. v. TUDOR et al.
• Decision Date: 16 October 1911
• Court: United States State Supreme Court of Vermont

81 A. 633

85 Vt. 190

KENNETT et al.

v. TUDOR et al.

Supreme Court of Vermont. Windham.

Oct. 16, 1911.

Exceptions from Windham County Court; William H. Taylor, Judge.

Action by A. Crosby Kennett and another against George A. Tudor and another. Verdict and judgment for plaintiffs. Affirmed in part and reversed and remanded in part.

This is a case for deceit in the sale of personal property. Trial was had on the second count, to which the general issue was pleaded. Verdict and judgment for the plaintiffs, who live in New Hampshire, while the defendants live in Vermont.

In December, 1900, the defendant George A. Tudor gave a mortgage to one Gibson on certain personal property that he owned. In April, 1904, he gave a mortgage to one Ware on certain other of his personal property. In January, 1903, he gave a lien note to the Lane Manufacturing Company on certain of his property. In November, 1907, he moved all of said property to Albany, N. Y., and went there with his son, the other defendant, where they both engaged to do certain work for the plaintiffs under a written contract, and where both remained until February, 1908, when they returned to Vermont, leasing said property in the mill in Albany that they had been operating on the plaintiffs' land. In December, 1907, the Lane Company's lien note was transferred to the plaintiff Kennett, who still holds the same. In January, 1909, the Gibson mortgage and the Ware mortgage were assigned to one Daley, who still holds the same. On February 13, 1908, the defendants bought over $8,000 worth of machinery, etc., of the plaintiffs and gave them a mortgage thereof, which mortgage also included all of the property covered by the Gibson and the Ware mortgage and the Lane Company's lien. On December 4, 1908, the defendants sold and delivered all of said property to the plaintiffs, and gave them a bill of sale thereof. The validity of said mortgages and lien note was not questioned by either party, and the plaintiffs conceded that the two mortgages held by Daley were valid incumbrances on the property covered by them, both in Vermont and New Hampshire. It appeared that Daley, by virtue of his said mortgages, went to New Hampshire and tendered to Kennett the full amount due on the Lane Company's lien, and demanded of him the possession of all the property described in said mortgages for the purpose of foreclosing them, which tender Kennett refused, and refused to deliver the property, though he did not question the tender. Thereupon, on February 6, 1909, Daley sued Kennett in trover in New Hampshire for the property, and that suit is still pending.

The property sued for is sufficient in value to pay both of said mortgages and said lien.

On cross-examination of Kennett, he was asked if he intended to contest Daley's suit against him on the ground that said mortgages are invalid. Plaintiffs' counsel said they did not claim that, but were willing to concede their validity. Defendants' counsel said they ought not to be bound by any concession the plaintiffs' counsel might make; that it was material to show whether the plaintiffs claimed in this case that said mortgages were valid here, and seek to recover the value of them, and at the same time intend to defend the trover suit on the ground that they are not valid. Plaintiffs' counsel then conceded that said mortgages are valid in New Hampshire, and constitute a valid incumbrance on the property that was taken from Vermont to New Hampshire. The court said the concession was ample, and excluded the question.

The plaintiffs' evidence tended to show that on December 4, 1908, when they bought the property of the defendants and took their bill of sale thereof, they made a final settlement with the defendants and passed receipts, and bought all of the property covered by the bill of sale, but were deceived and cheated by the defendants because part of the property was subject to the Gibson and the Ware mortgages, of which the defendants did not inform them.

As tending to rebut the plaintiffs' claim that they were thus deceived and cheated, the defendants offered to show by the defendant Ernest Tudor (who had testified that $300 were paid to the defendants at the time of the sale to the plaintiffs) what that money was paid for. On objection by the plaintiffs, the defendants offered to show by the witness that it was paid for work they had done for the plaintiffs; that the arrangement was that the plaintiffs were to have the mill and machinery, a schedule of which was attached to the back of the mortgage of February 13th; that the mill building was to be turned over to the plaintiffs; that the machinery that the defendant George had bought on his own credit, and which was not paid for, was to be paid for by the plaintiffs themselves, or they were to pay George for it so he could pay; that that was not settled that day because they did not have the bills there; that it was left that day under that arrangement; that the machinery that was brought from Vermont was to be paid for at what it was worth more than the Gibson and the Ware mortgages, but that it was left unsettled because they did not know the amount of those mortgages; that they came home to Vermont, and Daley was sent to New Hampshire by the holders of those mortgages, and when he came back he had the bill of sale. This offer was objected to as undertaking to impeach the bill of sale and as immaterial and irrelevant. The court ruled that under the pleadings the defendants could not go back of the bill of sale to open up the trade, which was evidenced by the writings. The witness was then asked to state fully the arrangement and agreement between the parties in regard to the machinery and the payment for it. This was objected to, and the court said it had already ruled that the parties had made a contract in writing, and had stated the rule as to contracts, and excluded the question. The contract referred to in these rulings was the bill of sale. The defendants were permitted to testify fully to conversations covering the Gibson and the Ware mortgages, and were not denied the privilege of showing conversation tending to impute to the plaintiffs knowledge of the existence of those mortgages at the time the bill of sale was given.

The plaintiffs have neither paid nor offered to pay said mortgages, nor any part thereof; and so the defendants requested the court to charge that they could recover only nominal damages. The court refused thus to charge, but charged instead that in the circumstances, and under the concessions in the case, the general damages would be the amount of said mortgages, and the jury found accordingly. The defendants excepted to the rulings adverse to them.

Argued before ROWELL, C. J., and WATSON, MUNSON, HASELTON, and POWERS, JJ.

H. G. and F. E. Barber, for plaintiffs. Chase & Daley, for defendants.

ROWELL, C. J. The plaintiffs' concession that the Gibson and the Ware mortgages are valid in New Hampshire, and constitute valid incumbrances there on the property that was taken from Vermont, was equivalent to a concession that Kennett did not intend to contest the trover suit on the ground that they are invalid. This being so, the concession bound the plaintiffs in this case as much as Kennett's answer to the like effect would have bound them, and so the defendants got what they asked for, namely, Kennett's intention in respect of that ground of defense. No copy of the second count is furnished us. All we know about it is, as stated in the exceptions, that it alleges fraud and deceit in the sale of December 4, 1908. Nor have we a copy of the bill of sale, but we assume that it has the necessary elements of a contract of sale, for it was so treated below.

Taken thus, the court was right in excluding the testimony of Ernest Tudor, for it would have gone beyond the purpose for which it was offered, namely, to rebut the plaintiffs' claim that they were deceived and cheated as alleged, and have tended to impeach the contract itself for nonconsummation, which was not within the purpose for which the testimony was offered, which purpose is the same as the claim here made for its admissibility.

And though the contract may be but matter of inducement, yet proof of it was essential in order to show a relation between the parties that would make the deceit actionable. Slack v. Bragg, 83 Vt. 404, 411, 76 Atl. 148.

The plaintiffs also contend that the ruling was right because the plea of not guilty operates as a denial only of the deceit alleged, and not of the facts stated in the inducement. This is so...