Simonds v. Bishop, No. 1020.

Docket NºNo. 1020.
Citation196 A. 754
Case DateFebruary 01, 1938
CourtUnited States State Supreme Court of Vermont
196 A. 754

SIMONDS et al.
v.
BISHOP.

No. 1020.

Supreme Court of Vermont. Rutland.

Feb. 1, 1938.


196 A. 755

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.

196 A. 756

The plaintiff Russell Simonds testified that around the...

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5 practice notes
  • Gould v. Gould, No. 1036.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 2, 1939
    ...all essential parts of the case it is not bound to make every conceivable comment on the evidence. Simonds v. Bishop, 109 Vt. 343, 348, 196 A. 754; Merrihew's Adm'r v. Goodspeed, supra, 102 Vt. at page 215, 147 A. 346, 66 A.L.R. But if it was intended by this exception to call attention of ......
  • Beattie v. Traynor., No. 201.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 1, 1946
    ...one year, although it in fact extended beyond that time, was held not to be within the statute. In Lawrence v. Stewart, supra [109 Vt. 333, 196 A. 754], a case involving an agreement for the support of the aged mother of the parties during her lifetime, the court said: ‘The contract here in......
  • Lalime v. Desbiens, No. 934.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 7, 1947
    ...the case was tried therefore became the law of the case and is not open to question in this Court. Simonds v. Bishop, 109 Vt. 343, 347, 196 A. 754; Perkins v. Vermont Hydro-Electric Corporation, 106 Vt. 367, 417, 177 A. 631; Edmunds Bros. v. Smith, 95 Vt. 396, 407, 115 A. 187; Bagley v. Coo......
  • Lawrence v. Stewart, No. 1021.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 1, 1938
    ...interest would be less than $100, and the amount available for Bridget's care would be less than $1,000. The defendant testified that until 196 A. 754 this suit was brought (May 28, 1936) he was claiming that the "fund" was intact; and that, after that time, he started making the claim that......
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5 cases
  • Gould v. Gould, No. 1036.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 2, 1939
    ...all essential parts of the case it is not bound to make every conceivable comment on the evidence. Simonds v. Bishop, 109 Vt. 343, 348, 196 A. 754; Merrihew's Adm'r v. Goodspeed, supra, 102 Vt. at page 215, 147 A. 346, 66 A.L.R. But if it was intended by this exception to call attention of ......
  • Beattie v. Traynor., No. 201.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 1, 1946
    ...one year, although it in fact extended beyond that time, was held not to be within the statute. In Lawrence v. Stewart, supra [109 Vt. 333, 196 A. 754], a case involving an agreement for the support of the aged mother of the parties during her lifetime, the court said: ‘The contract here in......
  • Lalime v. Desbiens, No. 934.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 7, 1947
    ...the case was tried therefore became the law of the case and is not open to question in this Court. Simonds v. Bishop, 109 Vt. 343, 347, 196 A. 754; Perkins v. Vermont Hydro-Electric Corporation, 106 Vt. 367, 417, 177 A. 631; Edmunds Bros. v. Smith, 95 Vt. 396, 407, 115 A. 187; Bagley v. Coo......
  • Redd Distributing Co. v. Bruckner, No. 140-69
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 10, 1970
    ...to a conversion where it is clear that a demand would have been useless or unavailing, if it had been made. Simonds v. Bishop, 109 Vt. 343, 196 A. 754. If judgment had been entered for the plaintiff below the lower court could have awarded damages in the amount of $1,231.00, the balance due......
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