People's National Bank v. Armand Brunelle

• Decision Date: 19 January 1928
• Citation: 140 A. 160,101 Vt. 42
• Parties: PEOPLE'S NATIONAL BANK v. ARMAND BRUNELLE
• Court: Vermont Supreme Court

140 A. 160

101 Vt. 42

PEOPLE'S NATIONAL BANK v. ARMAND BRUNELLE

Supreme Court of Vermont

January 19, 1928

October Term, 1927.

Sales---Conversion of Property Sold Conditionally with Lien Reserved by Removing from State---Necessity of Establishing Recording of Lien in Accordance with G. L. 2836---Error by Court in Refusing To Find Lien Recorded---Exhibits Cannot Supplement Court's Findings in Actions Triable by Jury---Failure of Court To Find Essential Facts Established by Evidence---Construction of Evidence in Support of Court's Finding---Insufficiency of Evidence To Sustain Finding of Acceptance of Conveyance of Real Property in Satisfaction of Lien Note---Limitation of Evidence to Particular Purpose---Harmless Error.

1. One claiming conversion of personal property sold conditionally with lien reserved, by removal of property from the State without consent of seller or his assignee, has burden of proving that his lien is recorded in proper town clerk's office, under G. L. 2836.

2. In action by assignee or seller for conversion of automobile sold conditionally with lien reserved, by removing it from State without consent required by G. L. 2836, failure of trial court to find that lien note was duly recorded as requested by plaintiff held error.

3. In action triable by jury, but heard by court, where lien note bearing indorsement showing that it was recorded, was referred to and made part of findings, but no finding made that it was duly recorded, held that instrument was merely evidence, and that exhibits could not be referred to for the purpose of supplementing findings.

4. In action by assignee of seller for conversion of automobile sold conditionally with lien reserved, by removing it from State without consent required by G. L. 2836, refusal of trial court to comply with plaintiff's request to find that car was taken out of State without plaintiff's consent, that plaintiff, through its attorney, made seasonable demand for it, and as to its stipulated value being vital to plaintiff's case and established by sufficient evidence, held error.

5. In aid of judgment, Supreme Court must read evidence so as to support trial court's finding, if it can reasonably be done.

6. In determining whether evidence supports finding of trial court testimony is not to be considered piecemeal, but as a whole together with reasonable inferences drawn therefrom.

7. In action by assignee of seller for conversion of automobile sold conditionally with lien reserved, by removing it from State without consent required by G. L. 2836, held that evidence did not sustain trial court's finding that plaintiff had accepted conveyance of certain real estate in satisfaction of lien note.

8. In action by assignee of seller for conversion of automobile sold conditionally with lien reserved, by removing it from State without consent required by G. L. 2836, evidence of amount offered for certain real estate, and that representative of conditional seller, then holding mortgage thereon and to whom land was subsequently conveyed, advised against acceptance of offer as inadequate, held properly admitted for sole purpose of bearing on probability that deed of such real estate had been accepted by plaintiff's assignor in satisfaction of debt represented by lien note.

9. Error, if any, in admission of testimony held harmless, where evidence to same effect was subsequently given without objection by another witness of equal reliability.

ACTION OF TORT for conversion, by assignee of seller of automobile sold conditionally with lien reserved, by removing it from State without consent required by G. L. 2836. Plea, general issue. Trial by court at the September Term, 1926, Washington County, Graham, J., presiding. Judgment in favor of defendant. The plaintiff excepted. The opinion states the case.

Reversed and remanded.

H. W. Scott, D. C. Davis, and John W. Gordon, for the plaintiff.

Theriault & Hunt for the defendant.

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

OPINION

POWERS

The plaintiff sues for the conversion of an automobile. The defendant had judgment below on facts found by the court. The plaintiff excepted.

The findings show that on February 21, 1925, the defendant bought of Kelley & Nelson, Inc., a Nash automobile, which he paid for by turning in a Maxwell car at a price agreed upon and giving his note secured by a lien on the Nash car for the balance of the purchase price. A week later, this note was transferred to the plaintiff and credited to the account of Kelly & Nelson, Inc. This note was not paid when it fell due and on November 10, 1925, it was charged back to the account of Kelly & Nelson, Inc., and its amount was included in the latter's note for a larger sum then taken by the plaintiff. Since that time, the plaintiff has held the lien note as collateral security for such larger note. It turned out that the Maxwell car was subject to a mortgage amounting to $ 275. When this fact appeared, and on April 4, 1925, the defendant executed to Kelly & Nelson, Inc., a mortgage on certain real estate in Montpelier as additional security for the lien note and to cover the amount of the mortgage on the Maxwell car, together with a bill for certain accessories bought of them. This real estate was subject to a prior mortgage of $ 800. Its value was from $ 2,250 to $ 2,500. On February 9, 1926, at the request of Kelly & Nelson, Inc., the defendant executed to them a warranty deed of the Montpelier property subject to the mortgage aforesaid.

This deed was made and accepted with the express agreement that it was to operate as a payment and discharge of the lien note and that any amount that might be realized from the property in excess of the amount required to pay that indebtedness should belong to the defendant. On April 8, 1926, Kelly &...