Smith v. Anderson

• Decision Date: 26 April 1898
• Citation: 41 A. 441,70 Vt. 424
• Court: Vermont Supreme Court
• Parties: SMITH v. ANDERSON et al.

41 A. 441

70 Vt. 424

SMITH

v. ANDERSON et al.

Supreme Court of Vermont. Windsor.

April 26, 1898.

Exceptions from Windsor county court; Munson, Judge. Trover by Sheffield Smith against Achibald Anderson and others. From a judgment in favor of defendants, plaintiff excepted. Affirmed.

It appeared that the plaintiff held a note for $4, two signed by the defendant Ames, secured by a mortgage upon lumber. The note was dated at Norwich, Vt., where the maker resided. The lumber was situated in the same town, and the mortgage was there executed and recorded. The plaintiff resided in Rhode Island, where, it was conceded, any rate of interest agreed upon by the parties is legal. The defendant Ames arranged with the plaintiff, in Rhode Island, for a loan of $4,000, for which he was to give him the note referred to, for $4,600. The plaintiff claimed that $200 was to be paid to the plaintiff's agent, Moore, under an agreement between Ames and Moore, for the latter's services in procuring the loan and passing upon the security, that, after the note and mortgage were executed, Moore took them to Norwich, with checks payable to Ames for $3,800, and one payable to himself for $200, and, after again examining the records, delivered the checks for $3,800 to Ames, retaining the other, as agreed, and left the mortgage to be recorded. The defendant claimed that he never agreed to allow Moore $200, or knew that he retained it, and that, he never understood why he did not receive the $4,000. It appeared that, when the mortgage was given, the lumber was stuck up in the yard of the defendant's mill in 60 different piles, as described in the mortgage, each pile marked by a tin tag attached thereto, with the plaintiff's name thereon. The defendant did not deny that it was part of the contract that none of the lumber should be removed or touched. Such payments had been made on the note before the alleged conversion that, if the amount furnished was only $3,800, there was nothing due upon it, if treated as a Vermont contract.

John H. Watson, for plaintiff.

Hunton & Stickney, for defendants.

TAFT, J. There were nine exceptions reserved on trial.

1. The ninth, relating to the admission of the statutes of New Hampshire relating to interest and usury, is waived.

2. The court charged that whether or not the note had been paid might depend upon whether the contract was made in Vermont or Rhode Island. The plaintiff insists this was error, for the jury might well understand from this part of the charge that the place of making the contract was controlling; and counsel argue that all the facts and circumstances pertaining to the transaction, with all legal presumptions, should have been submitted to the jury, for them to find with reference to the law of which state the contract was made. It does not appear but that this was done, and, if otherwise It would be error, we must infer that it was. The charge as given embodied a sound legal proposition. The court did not say that the right to recover depended upon whether the contract was made In Vermont or Rhode Island, but that it might, and so it would, if there was nothing in the case as to the Intention of the parties in reference to which law they contracted. If the jury did not find that the parties contracted with reference to either place, then the right to recover would depend upon the law of the place in which the contract was made. It is unsafe to reverse a judgment for the reason that the jury misunderstood the charge of the court, when the charge was correct both in law and in language. If a jury misunderstand the charge of the court, the remedy is not by exception to a charge which is correct, but by motion to set aside the verdict and grant a new trial. To reverse a judgment upon exception when the trial court has committed no error is illogical, to say the least, and should never be done. In fact, it is illegal to do so.

3. An exception was taken to the charge in regard to the check for $200. The testimony of the defendants tended to show that an arrangement was made in Rhode Island that the plaintiff should advance the defendant Ames the sum of $4,000 upon the note in suit, but that the plaintiff sent him (Ames) checks for $3,800 only; Moore, who was then acting for the plaintiff, taking the check for $200. The court charged, under the plaintiff's exception, that, if this was true, the contract was not finally consummated until Ames accepted the check for $3,800, for that the defendant was under no obligation to accept $3,800 if, by the terms of the contract, as entered into in Rhode Island, he was to...