Simonds v. Bishop

• Decision Date: 01 February 1938
• Docket Number: 1020
• Citation: 196 A. 754,109 Vt. 343
• Parties: WILLIAM T. SIMONDS ET AL. v. ROBERT E. BISHOP
• Court: Vermont Supreme Court

196 A. 754

109 Vt. 343

WILLIAM T. SIMONDS ET AL. v. ROBERT E. BISHOP

No. 1020

Supreme Court of Vermont

February 1, 1938

January Term, 1938.

Action for Conversion of Mortgaged Hay---Right of Chattel Mortgagee to Limit Waiver of Rights---Law of the Case---Termination of Waiver Permitting Feeding of Mortgaged Hay Held for Jury---Demand and Refusal Unnecessary Where Hay Disposed of---Extent of Duty in Charging Jury---Negative Charge Unnecessary---Failure to Charge When No Conversion Held without Error.

1. Chattel mortgagees had right to limit to a certain time waiver of rights under mortgage arising out of their permitting mortgagor to feed mortgaged hay to cattle.

2. Where case was tried below and argued in Supreme Court on theory that chattel mortgagees could revoke waiver of their rights arising out of their permitting mortgaged hay to be fed to cattle and no one was affected thereby but parties to suit, that theory became law of case and Supreme Court would not inquire whether unrestricted waiver could be revoked.

3. In action for conversion of hay, where plaintiff held chattel mortgage on hay grown by one occupying defendant's farm under contract to purchase, but gave mortgagor permission to feed hay to cattle on farm, and where such contract to purchase was terminated by mutual agreement, at which time defendant learned of existence of mortgage, and prospective purchaser continued under oral agreement with defendant to operate farm, receiving rent, fuel, milk, cash for groceries and one-half of net income, question whether waiver terminated, either by its terms or by revocation, when contract of sale was terminated, was for jury and defendant was not entitled to directed verdict, since if hay was turned over to defendant and he accepted and used it, either himself or through mortgagor, this would constitute affirmative act of conversion and he would be liable for it in the action though plaintiffs made no attempt to stop him.

4. Where hay involved in trover action had been disposed of when suit was brought so that demand therefor could not have been complied with, demand and refusal were not necessary.

5. While it is duty of court, without request, to charge upon all essential parts of case, it is not bound to make every conceivable comment on the evidence.

6. When court clearly and accurately tells jury what is necessary for plaintiff to prove in order to recover, it is not required to tell them that if he fails to prove such things, or any of them, he cannot recover.

7. Exception to failure of court to charge there was no conversion of hay if defendant did not accept it but made different arrangement with mortgagor when latter turned it back, was without merit where court charged that there was conversion if mortgagor surrendered hay to defendant and defendant accepted it and assumed dominion over it, and it was thereafter used so that it was not available when plaintiffs sought to foreclose mortgage on it.

ACTION OF TORT for conversion of hay. Plea, the general issue. Trial by jury at the September Term, 1936, Rutland County, Buttles J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Jones & Jones for the defendant.

Philip M. M. Phelps for the plaintiff.

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

OPINION

SLACK

This is an action of tort for the conversion of hay. The plaintiffs had a verdict and judgment below and the case is here on defendant's exceptions to the refusal of the court to direct a verdict for him, to its charge, its failure to charge as requested and its denial of his motion to set aside the verdict.

The undisputed evidence shows that on January 8, 1935, the defendant entered into a contract, in writing, with one Barrows and his wife to sell them a farm therein described located in Benson, Vt., together with the personal property thereon, and to execute and deliver to them a good and sufficient warranty deed of the farm and bill of sale of the personal property when the purchase price with interest thereon had been fully paid. Said contract provided that Barrows and his wife should have the use and occupancy of said premises during such time as they fulfilled their part of such agreement, but no longer, and that upon their failure to do so they should forfeit all right and title therein and whatever they had paid toward the purchase price. Other provisions of the contract not here material are not noticed.

The Barrows took possession of said property, under and by virtue of such contract, the latter part of March, 1935, and continued to operate it under the terms thereof until about the 25th of the following December when Barrows notified Bishop that he "didn't want the farm any longer * * * wanted to give it up," gave his contract back to Bishop and the same was then and there terminated. Prior to that time Bishop received checks for 40 per cent of the milk money which were payable to him and were applied on the purchase price of the property; subsequently he received pay for all of the milk. After the termination of that contract Bishop and Barrows entered into an oral agreement under which Barrows was to remain on, and operate the farm until March 1 1936, for which he was to receive house rent, fuel, milk, twenty dollars per month for his grocery bills and one-half of the net income from the farm after deducting such grocery bills and certain bills which Bishop was to pay. Barrows cut the hay on said farm and put it in the barns the summer of 1935. On August 17 of that year he gave the plaintiffs a mortgage thereon to secure the payment of a demand note of even date, which mortgage was duly recorded, and plaintiffs gave Barrows permission to feed such hay to the cattle on the farm, which permission never was expressly revoked, although Barrows appeared to have considered it as terminated when his first contract with Bishop was abandoned. At the time that contract was terminated, or soon after, Barrows told Bishop about the mortgage. The plaintiff, Russell Simonds, testified that around the 25th of December, 1935, he learned that Barrows was to leave the farm, and immediately saw Bishop and told him about his mortgage; that Bishop acknowledged that he knew...