Root v. Lord

The opinion of the court was delivered by Redfield, J. The only question in this case, which has not been already settled in this state by the case of West v. Bolton, 4 Vt. 558, and other cases following that, is in regard to the effect of the judgment, in an action of book account, for the price. And this, we think, can make no difference. The most, which it could be claimed is implied in the judgment, is, that the defendant had sold and delivered the cow ; that is all which is requisite, in order to sustain the action and recover the judgment. And this is no more than what the original contract stipulated, — no more than what existed from the time of the contract until the return of the cow. And we do not think., that during this time, the defendant would have been precluded from maintaining an action for the price of the cow, or that a judgment would have vested the title, absolutely in the plaintiff. The lien, which the defendant retained upon the cow, is very little different, in effect, although somewhat different in form, from that of collateral security for a debt, by the way of the pledge, or mortgage, of personal property. And in such case it was never doubted, that the creditor might pursue both the debt and the pledge, until he obtained security. And the fact, that the property had been left in the defendant’s possession, without his consent, could make no difference; for if that were so, it would be equivalent to giving the plaintiff to gain an [571] advantage, by leaving the property with the defendant'against his will, when no such provision is contained in the original contract. The case of Smith v. Field, 4 T. R. 402, only decides, that the parties to a contract of sale may rescind the contract by consent,— which was never doubted. But in the present case there is no evidence of such consent. And farther, that if the vendor attach the goods as the property of the vendee, he is estopped to affirm, that they had rescined the sale, — which is no doubt just and reasonable, but can have no application to the present case. The case of Marston v. Baldwin, 17 Mass. 606, only goes to show, that, in case of a conditional sale, the delivery did not make the title absolute, and that the vendor may pursue the property, without showing the contract of sale rescinded. This, so far as it applies to the present case, would seem quite as much to favor the claim of the defendant, as of the plaintiff. 'Judgment affirmed.