Farley v. Lincoln.

Doty v. Hawkins, 6 N. H. 247; Lovejoy v. Jones, 30 id. 169; Cooper ▼. Newman, 45 id. 339, and authorities cited.

The facts stated in Hyde v. Noble show that there was a demand and refusal before the commencement of the suit; but that case has been constantly referred to, as well in this State as in other jurisdictions, to the point broadly laid down in the opinion of PARKER, C. J., that trover without a demand lies in favor of the owner of a chattel against one who has come to the possession of it by purchase from one having no right to sell; and it would doubtless be a surprise to the profession to learn that such is not the law here. We think it is the law, and that it rests upon reasons quite satisfactory and sound. Parsons v. Webb, 8 Greenl. 38; Galvin v. Bacon, 2 Fairf. 30; Stanley v. Gaylord, 1 Cush. 536; and see the able and instructive dissenting opinion of COWEN, J., in Barrett v. Warren, 3 Hill, 351. But it is very obvious that there was no conversion in the case of Hyde v. Noble, unless the original taking was a conversion; and that taking was not a conversion unless it was wrongful. If, therefore, it was not wrongful, a demand and refusal would have been necessary before trover could be maintained. But "whenever the taking of goods is wrongful, trespass, replevin, and trover without a demand are concurrent remedies for the owner, if he has the right of imme. diate possession." METCALF, J., in Stanley v. Gaylord, at 545, citing Wilkinson on Replevin 2; 7 Johns. 143; 1 Chit. Pl. 176; 2 Saund. 47, k note. That being so, the doctrine of Hyde v. Noble is decisive of the present case; for, according to that case, trover without a demand would lie here, and therefore the plaintiffs might bring either of the concurrent remedies, trespass or replevin, at their election.

It is undoubtedly settled that, inasmuch as a fraudulent sale is voidable only, the vendor cannot set it aside to the injury of third persons who have made expenditures under it, on the supposition that it is binding. And so a purchaser for value, without notice from the fraudulent vendee, will acquire a good title. Grout v. Hill, 4 Gray, 369; Trull v. Bigelow, 16 Mass. 406; Buffington v. Gerrish, 15 id. 156; White v. Garden, 10 C. B. 919; Root v. French, 13 Wend. 570; Mowrey v. Walsh, 8 Cow. 238. But no such question arises here. The defendant was not a purchaser, and had made no expenditures under the fraudulent sale. At the utmost, his rights. in respect to the property could not be larger than those of ar VOL. XII. — 24

Wright v. Holbrook.

attaching or judgment creditor. And the cases all are, that such creditor acquires no title that will hold against the true owner, the vendor. Load v. Green, 15 M. & W. 216; Bristol v. Wilsmore, 1 B. & C. 514; Van Cleef v. Fleet, 15 Johns. 147; Mowrey v. Walsh, 8 Cow. 238; Root v. French, 13 Wend. 575; Buffington v. Gerrish, 15 Mass. 156. "An assignee takes the thing assigned, subject to all the equity to which the original party was subject." Ld. MANSFIELD, in Peacock v. Rhodes, Dougl. 636.

We have not thought it necessary to go into a minute and extended discussion of the question raised in this case. The authorities to which reference has been made furnish an ample and exhaustive review of the whole subject, and all the authorities. From a careful examination, we are brought to the conclusion that the taking by the defendant was in the eye of the law wrongful, and a disturbance of the plaintiffs' constructive possession; and, therefore, that, upon the facts claimed, the action may be maintained.

Case discharged.

CASES

IN THE

SUPREME COURT

ОР

VERMONT.

CLARK V. WELLS.

(45 Vt. 4.)

Conditional sale-property by accession.

B. sold a wagon to H. on condition that it should remain the property of B till paid for. Plaintiff repaired it for H, by putting in new wheels and axles. H. took it from plaintiff's possession without his knowledge or consent, and afterward agreed with plaintiff that the "running part" of said wagon should remain the property of plaintiff until paid for. H. never paid either B. or plaintiff, and neither had notice of the other's claim. B. took the wagon back from H. and sold it to defendant, who did not know of plaintiff's claim. Held, that defendant was liable in trover for the wheels and axles.

TROVER by John W. Clark against J. B. Wells for the wheels and axles of a stage-wagon.

The opinion states the case. The court below rendered judgment. Verdict for the plaintiff for the value of the wheels and axles, to which the defendant excepted.

C. H. Heath, for defendant. This is not a case of confusion of goods. 1 Hill. on Torts, 550; Haseltine v. Stockwell, 30 Me. 237; Bryant v. Ware, id. 295. Harrington had no right to destroy the old wagon, nor any part of it; nor could he give that right to another. Hiscox v. Greenwood, 4 Esp. 174.

Clark v. Wells.

Heaton & Reed, for plaintiff.

REDFIELD, J. This action is trover for the alleged conversion of the wheels and axles of a wagon.

The case shows that a stage-wagon was sold by Bridgman to Harrington, with the condition that said wagon was to remain the property of said Bridgman until the price was paid; and that the purchase-money was never paid. That afterward, at the instance of Harrington, plaintiff repaired said wagon by substituting new wheels and axles for the old.

That Harrington took the wagon, thus repaired, from plaintiff's shop, without his knowledge or consent. Afterward, Harrington gave his note to the plaintiff for such repairs, with the condition and agreement that the running part of said wagon should remain the property of the plaintiff until said note was paid. Bridgman thereafter took possession of the wagon, with the new gear added by plaintiff, and sold it to the defendant, without knowledge of plaintiff's claim.

The defendant is a bona fide purchaser without notice of any right or eqnity on the part of the plaintiff. The plaintiff's lien for repairs upon the wagon was personal, and was waived by allowing the wagon to go back into Harrington's possession, and taking his note for the repairs, and security upon the parts of the wagon supplied by himself. He must, therefore, stand upon the contract between himself and Harrington.

We think the ordinary repairs upon a personal chattel, such as making new bolts, nuts, thills, and the like, become accretions to, and merge in, the principal thing, and become the property of the general owner. But in this case the wheels and axles constitute the running part of the wagon. They could be followed, identified, severed, without detriment to the wagon, and appropriated to other use without loss. The plaintiff was the owner, and never parted with the property. He had the right to resume possession when Harrington failed to pay the note. The property remained in him as perfectly as if, in the exigency of a broken wheel, or axle, he had loaned them for temporary use. Without questioning the main position of defendant's counsel, we think, under the facts stated in tnis case, the property in those wheels and axle continued in the plaintiff, and that an action lies for the conversion.

Judgment affirmed.

Smith v. Hill.

SMITH V. HILL.

(45 Vt. 90.)

Partnership—partners as to third persons.

One Harrington gave the plaintiff a note signed "Hill & Co. by Harrington." There never existed any such firm as "Hill & Co.," nor were Hill and Harrington ever partners; but sometime before the note was given, Hill was informed that Harrington was using his name, and he thereupon told Harrington that he "must not use that name to injure him," and Harrington said he would not. Hill did not know of the giving of the note to plaintiff, nor did plaintiff know of the previous use by Harrington of Hill's name. Held, that Hill was liable on the note.

ASSUMPSIT upon a promissory note, signed "L. D. Hill & Co., by F. C. Harrington." Plea, the general issues. The note was given to plaintiff by Harrington for some property purchased by the latter. There was no such firm as L. D. Hill & Co., nor were Hiil and Harrington ever partners. Some two or three years before the note was given, Hill was informed that Harrington was using his name, and thereupon told him that he must not use that name to injure him. Harrington said he would not. Hill did not know of the giving of said note till about the time this suit was commenced, nor had he been ever before called upon to pay any thing on paper thus signed. It did not appear that plaintiff was aware of the previous use by Harrington of Hill's name, nor that Harrington made any representations when the note was given. Judgment was rendered for the defendant Hill, but against defendant Harrington. Plaintiff excepted to the rendering of the judgment for Hill.

C. H. Davis, for plaintiff, cited Cottrill v. Vanduzen, 22 Vt. 511; Stearns v. Haven, 14 id. 540; Kellogg v. Griswold, 12 id. 291; Bailey v. Clark, 6 Pick. 372.

Belden & May, for defendant, cited Carter v. Whalley, 1 Barn. & Ad. 11; Parsons' Part. (marginal) 119, 124, 130; Hicks v. Cram, i? Vt. 449; Young v. Axtell, 2 H. Bl. 242; Wood v. Pennell, 51 Ma 52; Mathews v. Felch, 25 Vt. 536; 3 Kent's Com. 33.