Prouty v. Nichols
| Decision Date | 10 May 1909 |
| Citation | 82 Vt. 181,72 A. 988 |
| Parties | PROUTY v. NICHOLS. |
| Court | Vermont Supreme Court |
Exceptions from Windham County Court; George M. Powers, Judge.
Action by Elias Prouty against Herbert N. Nichols. Judgment for plaintiff, and defendant excepts. Reversed and remanded.
Argued before ROWELL, C. J., and MUNSON, WATSON, and HASELTON, JJ.
Chase & Daley, for plaintiff. Herbert G. & Frank E. Barber, for defendant.
This was an action of trover for the alleged conversion of a yoke of oxen. Trial by jury was had. A verdict for the plaintiff was returned, and judgment was rendered thereon.
The plaintiff leased a farm, with the farming implements and the live stock thereon, to one Piatt for a term of five years. Included in the live stock was a certain yoke of oxen. The lease, which was in writing, and which was duly signed, sealed, delivered, and recorded, contained the following clause: "At the expiration of this lease the party of the second part does agree with the party of the first part to return to said party of the first part the above personal property or its equivalent in as good condition as it is received, loss by fire and accident excepted." Counsel agree that by the terms of the lease Piatt did not have the right to sell the live stock referred to. Nevertheless he sold the oxen to the defendant and received pay therefor.
On trial the defendant offered to show, in substance, that, after the execution and delivery of the lease, the question as to the right of Piatt to sell any of the stock, including the oxen, came up between the plaintiff and Piatt, that they conferred with the draftsman of the lease, who advised that Piatt had such right to sell, and that the plaintiff and Piatt thereupon agreed so to construe the lease, and that Piatt had the right to sell the oxen, and that both the plaintiff and Piatt acted upon their mutual agreement as to the construction of the lease until a time later than the sale of the oxen by Piatt to the defendant Nichols. The offered evidence was excluded, and the defendant excepted. As, however, the evidence offered tended to show a license to sell the oxen, its exclusion was error. If Piatt sold the oxen under a license from the plaintiff, although such license was verbal merely, the plaintiff could not recover of the defendant. Colston v. Bean, 77 Vt. 40, 58 Atl. 795; Hunt V. Allen, 73 Vt. 322, 50 Atl. 1103; Lawrence v. Dole, 11 Vt. 549.
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... ... declarations of the alleged agent made out of court ... Sias v. Consolidated Lighting Company, 73 ... Vt. 35, 42, 50 A. 554; Prouty v. Nichols, ... 82 Vt. 181, 184, 72 A. 988, 137 Am. St. Rep. 991. First ... National Bank v. Bertoli, 87 Vt. 297, 311, 89 ... A. 359, Ann. Cas ... ...
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