Simonds v. Bishop, 1020.

Decision Date01 February 1938
Docket NumberNo. 1020.,1020.
CourtVermont Supreme Court
PartiesSIMONDS et al. v. BISHOP.

Exceptions from Rutland County Court; John S. Buttles, Judge.

Action of tort for the conversion of hay by William T. Simonds and others against Robert E. Bishop. Verdict and judgment for plaintiffs, and defendant brings exceptions.

Affirmed.

Argued before POWERS, C. J., and SLACK, MOULTON, and SHERBURNE, JJ.

Philip M. M. Phelps, of Fair Haven, for plaintiffs. Jones & Jones, of Rutland, for defendant.

SLACK, Justice.

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, $20 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 17th 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 about it, and told him that it would not do him any good because Barrows had no right to give it; that Bishop then offered to show him his original contract with Barrows, but he told Bishop that he did not care to see it and "went along," all of which was denied by Bishop. Barrows continued to feed the hay to the stock on the farm until he moved away, the last of February, 1936. The following April the plaintiffs commenced proceedings to foreclose their mortgage and discovered that the hay covered thereby had been disposed of, whereupon this suit was brought.

No question is made but that at the time plaintiffs took their mortgage they gave Barrows permission to feed the hay to the cattle on the farm, but for how long a time was in dispute. The plaintiffs claimed that that right terminated when Barrows abandoned his original contract with Bishop and turned the property back to him, while defendant claimed it continued as long as Barrows remained on the farm irrespective of the arrangement under which he was there. The only direct evidence regarding this was the testimony of Barrows which was as follows:

"Q. After you mortgaged this hay to Mr. Simonds in August did you have permission from him to feed it to the cattle? A. I did.

"Q. You did? A. Yes. "Q. Did he ever revoke that permission? A. Sure he did.

"Q. When did he...

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