M. Ella Cameron v. Floyd N. Blanchard Et Ux

• Court: Vermont Supreme Court
• Writing for the Court: POWERS
• Citation: M. Ella Cameron v. Floyd N. Blanchard Et Ux, 176 A. 290, 107 Vt. 51 (Vt. 1935)
• Decision Date: 02 January 1935
• Parties: M. ELLA CAMERON v. FLOYD N. BLANCHARD ET UX

176 A. 290

107 Vt. 51

M. ELLA CAMERON v. FLOYD N. BLANCHARD ET UX

Supreme Court of Vermont

January 2, 1935

Special Term at Rutland, November, 1934.

Principal and Agent---Evidence---Admissions---Harmless Error---Hearsay Evidence---Replevin---Trial---Instructions to Jury---Refusal To Give Certain Instructions as Justified by Reason of Theory of Plaintiff's Case---Authority To Sell Personal Property as Not Giving Authority To Lease Such Property---Right of Owner of Personal Property, Sublet without His Authority with Farm, To Demand Property Prior to Expiration of Lease---Circumstances Rendering Demand for Restoration of Property Unnecessary---Record in Replevin Suit as Not Bringing Question of Sufficiency of Demand before Supreme Court on Exceptions---Response to Demand for Restoration of Personal Property That Officer Should Take Property, under Circumstances Shown, as Equivalent to Refusal of Demand---Purpose of Demand and Necessity of Affording Reasonable Opportunity To Restore Property before Bringing Replevin---Presumption from Noncompliance with Demand To Restore Property, and Burden of Producing Evidence To Rebut Such Presumption.

1. In action of replevin for herd of cows against husband and wife where defendants claimed cows had been sold to wife by plaintiff's father, held that, if such sale was made plaintiff was bound thereby, undisputed evidence showing that plaintiff's father was her agent in buying and selling cows.

2. In such action, admission of evidence that husband, in absence of wife, admitted that plaintiff owned cows, held error against wife's exception, where evidence failed to show that cows were owned jointly by defendants.

3. In absence of joint ownership or joint purpose or design admissions of one party are not evidence against the other.

4. In action of replevin for herd of cows against husband and wife claimed by defendants to have been sold to wife by plaintiff's father, held that husband's agency in selling cows for her did not justify his admissions against her that plaintiff was owner of cows, where at time such admissions were made he was not selling cows or negotiating sale of them for her.

5. Admission of agent is admissible against principal only when made when acting within scope of his authority and when admission relates to act or negotiation connected therewith.

6. In action of replevin for herd of cows against husband and wife, claimed by defendants to have been sold to wife by plaintiff's father, erroneous admission as against wife of husband's admissions that plaintiff owned cows, held rendered harmless by subsequent instruction by court to jury not to consider such admissions as evidence against wife, though such instructions were not given until close of evidence.

7. In such action, question asked in cross-examination of cattle dealer who was witness for plaintiff, whether he had learned from husband, that cattle belonged to latter's wife, in conversation when plaintiff was not present, held properly excluded, being mere hearsay or opinion and not evidence against plaintiff.

8. In such action, failure of court to charge jury as to law in regard to fraudulent transfers of property, and that, if plaintiff's father was guilty of such fraud, law would not aid him in recovering property, held without error, there being nothing to show that plaintiff authorized or was in any way connected with father's pretended sale, or that she ratified or recognized it.

9. In such action, failure of court to call jury's attention to plaintiff's admission that her father had authority to buy and sell cows for her, held without error, since only theory plaintiff advanced was that no sale, valid or fictitious, was made.

10. Authority of agent to "sell" cows for owner, held not to give him authority to "lease" them.

11. Where tenant of farm, on which cows which he had bought as agent of another were kept, sublet farm for remainder of term, without authority from owner letting cows go with farm, and sublessee mortgaged all of them and sold some of them, owner of cows was not obliged to wait until lease expired before demanding her property.

12. Under such circumstances, selling of cows from such herd by such sublessee being wrongful assumption of right to do so, and assertion of hostile and adverse claim to them, owner had right to replevy them, without demand.

13. Rule that wrongful assumption of property in, or right of disposing of, goods may be conversion in itself, and render unnecessary demand and refusal, held applicable on question of necessity of demand in replevin action.

14. Demand on sublessee, who claimed to be purchaser in possession of herd of cows, for return thereof, held not necessary before bringing of replevin suit by owner.

15. Where officer testified that before serving writ of replevin demand was made on defendants for return of property, and he was un-contradicted, and sufficiency of demand and refusal, if conduct of defendants in merely telling officer to take property constituted refusal, was not questioned, held that question as to sufficiency thereof was not before Supreme Court on exceptions, though referred to in argument.

16. In action of replevin for herd of cows, where officer before serving writ demanded such property, and defendants responded by telling officer to take property, held that, it being defendants' duty, if property was wrongfully claimed by them, to return it to plaintiff or her agent on demand by what amounted to manual delivery thereof, response of defendants was equivalent to refusal of demand.

17. Purpose of demand before instituting replevin suit is to enable defendant to restore property, and sufficient opportunity to do so must be afforded defendant before service is made.

18. Noncompliance with demand of plaintiff in replevin for restoration of property, after reasonable opportunity to obey it has been afforded, is tantamount to refusal and presumptive evidence of conversion, requiring defendant to produce evidence explaining omission in way to rebut such presumption.

ACTION OF REPLEVIN. Plea, general denial. Trial by jury at the September Term, 1933, Rutland County, Bicknell, J., presiding. Verdict and judgment for the plaintiff. The defendants excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Novak & Bloomer for the defendants.

Leonard F. Wing and Clayton H. Kinney for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

POWERS

This is an action of replevin for a herd of cows. Verdict and judgment were for the plaintiff. The defendants excepted.

The evidence was such that a jury would be warranted in finding the following facts: In the spring of 1932, the plaintiff through her father, Alexander Cameron, acting as her agent, bought the cows in question, with her own money. Alexander had them on a farm called the Buffum farm, near the city of Rutland, which he occupied as a tenant, and where a sister-in-law lived and acted as housekeeper. Later on, trouble arose between Alexander and this housekeeper, which progressed far enough to threaten litigation. This was in July, 1932. Alexander deemed it wise for him to leave the State, and on the 16th or just before, he sublet the Buffum farm to the defendant Floyd for the remainder of his term, and let the cows above referred to go with the farm. On the 16th, when Alexander had completed arrangements to go away, Floyd suggested to him that he had better make a paper showing that the plaintiff owned the cows. He agreed to this, and Mrs. Blanchard drew up a paper which he signed and left with her. He then fled the State. This writing has not appeared, but Mrs. Blanchard left with the plaintiff a paper writing dated July 16, 1932, and purporting to be a promissory note signed by her for $ 1,500, payable to Alexander Cameron, without words of negotiability, in one year from its date, and naming the consideration as being twenty-four cows bought of Alexander by her. These were the cows in question. Soon after the plaintiff received this writing, not understanding it, she asked Mrs. Blanchard if it meant that she had bought the property, and Mrs. Blanchard replied that it did not, and that it was given for the sole purpose of showing that the plaintiff owned the property. On other occasions, Mrs. Blanchard gave the plaintiff the same assurance. Later, Mrs. Blanchard made claim of title to the cows, and had them set to her in the town list. The defendants lived together as husband and wife on a farm of their own in Rutland city, and had a milk route there. They carried on business in their joint names, usually, and Floyd buys and sells cattle for his wife. She never paid anything on the note, and he never paid much on the lease.

After Alexander had been out of the State for a few weeks, the trouble with the housekeeper was fixed up and he returned. From time to time he called on Floyd for payment of the rent then overdue, but obtained nothing but promises. It was finally discovered that the defendants were claiming title to the cows; and when, on April 29, 1933, the plaintiff tried to talk by telephone with Floyd about her having the cows tested, he notified her that if she wanted to know about the cattle, she should go to his lawyer, Mr. Bloomer, and "slammed up the receiver." Thereupon this suit was brought. The defendants failed to answer, so a general denial is implied. P. L. 1574.

There was much bickering at the trial, and, apparently, there was an unusual amount of over-robust swearing. Altogether the case made below was one especially appropriate for the determination of a jury of practical and sensible men. Such a jury the parties undoubtedly had. It accepted the claims of the plaintiff, and it...