Bundy v. Ayer

The opinion of the court was delivered by Kellogg, J. In order to enable the plaintiffs to maintain this suit, the facts proved at the hearing before the auditor must be sufficient to shew a sale and delivery of the property in question, by the plaintiffs to the defendants. It was so held in Read v. Barlow, 1 Aik. 145, and in the same case, when again before the court, reported in 1 Vt. 97. Nor can this action be sustained, unless the facts shew, that there has been an executed and perfected contract and sale of the stove, to the defendant. It was so decided in Carpenter v. Dole, 13 Vt. 578. Do the facts in the present case show such a sale and delivery, or such an executed and perfected contract and sale of the stove, that nothing more remained to be done, to vest the property in the defendant 1 It appears, that some conversation was had between the plaintiffs and defendant respecting the purchase of the stove by the defendant in the event of the contract between the plaintiff and Lucius Ayer being rescinded ; and that the defendant proposed to buy the stove of the plaintiffs, provided certain arrangements should be made between the defendant and his son, Lucius Ayer, and provided, also, that the plaintiffs would take a certain old stove in part payment and the remainder in produce. The plaintiffs acceded to this proposition. They then separated, and nothing farther passed between the parties in relation to the stove. It is evident, that, at this interview between the parties, no contract of sale was executed and perfected, but the very proposition of the defendant was made to depend upon a contingency, which might never happen; and in the event of its [500] happening, it contemplated farther action between the parties to complete and perfect a contract of sale. The property in the stove did not vest in the defendant. Nor does it appear, that the plaintiffs, at this or any other time, delivered the stove to the defendant. It is, however, insisted, that, as the defendant, some two months afterwards, became repossessed of his farm, and the stove being in the house upon the premises occupied by him and Lucius, it should be considered as in the defendant’s possession, and as equivalent to a delivery of the stove to him. The stove was in the possession of Lucius Ayer, who purchased it of the plaintiff, and in whose possession it has ever since remained. It was in his use, when the farm was reconveyed to the defendant, at which time the defendant notified the plaintiffs he should not take the stove. The defendant never used the stove, or exercised any contract over it whatever. We are entirely satisfied, that there was no such contract of sale and delivery of the stove to the defendant, as will enable the plaintiffs to maintain this suit. Consequently the judgment of the county court is affirmed.