Kitson Mach. Co. v. Hodden

• Decision Date: 27 February 1902
• Citation: 52 A. 271,74 Vt. 104
• Parties: KITSON MACH. CO. v. HODDEN.
• Court: Vermont Supreme Court

52 A. 271

74 Vt. 104

KITSON MACH. CO.

v. HODDEN.

Supreme Court of Vermont. Bennington.

Feb. 27, 1902.

Exceptions from Bennington county court; Start, Judge.

Action of replevin by the Kitson Machine Company against John S. Holden, administrator of the estate of William Campbell, for machinery which the plaintiff was installing in the intestate's mill at the time of his decease under a contract of purchase. the court found that the plaintiff had not demanded the property, and held that under the contract of sale payment was to be made on delivery and before title passed, and that there was no evidence tending to show a waiver of this right by the plaintiff. At the close of the evidence the defendant moved for a verdict and order for a return of the property. The court refused to order the return of the property or to submit that question to the jury, held that the property should not be returned, and ordered a verdict for the defendant to recover his costs. The defendant brings exceptions. Affirmed.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, WATSON, and STAFFORD, JJ.

W. B. Sheldon and Batchelder & Bates, for plaintiff.

Barber & Darling, for defendant.

ROWELL, J. This case was heard with James Smith Woolen Co. v. Holden, 73 Vt 396, 51 Atl. 2. The evidence, other than the documentary, though referred to, is not furnished. The fair import of the correspondence between the plaintiff and the defendant's intestate, by which the contract is to be ascertained, is that the plaintiff, a manufacturer of textile machinery at Lowell, Mass., was to furnish the machines in question for so much, delivered free on board at Bennington whenever the intestate desired, and set them up and put them in running order in the intestate's mill there at its own expense, the intestate to furnish necessary help and labor, and pay board of man while erecting machines. The machines were shipped to the intestate at his special request, made after the contract was completed; the bill of lading was made to him, and the plaintiff prepaid the freight. On then arrival at Bennington the intestate took them from the cars to his mill, and subsequently took out one or more policies of insurance that in terms covered all machinery in the mill. The plaintiff sent men to set up the machines and start them, and they were doing that work when the Intestate died, but stopped then, and did not resume, for some reason not shown by the record furnished. Five days afterwards the defendant was appointed administrator of the intestate's estate, and nine days after that this suit was brought, but without previous demand of the property. The court held that, the contract being silent as to the time of payment, the sale was for cash on delivery and before the title passed, and that there was nothing to show that the plaintiff had waived its right to such...