Parker v. Kendrick

The opinion of the court was delivered by Redfield, Ch. J. The only question in the present case is in regard to the sufficiency of the charge as applicable to the testimony in the case. And in revising the proceedings of the county court, and especially in respect to the phraseology of their instructions to the jury, we do not intend to require any particular formula. The question here was in regard to the requisite change of possession in order to perfect a sale or mortgage of personal property as against the creditors of the vendor or mortgagor. This case is somewhat different from that of Hutchins v. Gilchrist, 23 Vt. 82. The property there being upon the land of a third person, and only a constructive possession in any one, and being bulky and incapable of tradition from hand to hand, the court held that upon the sale no actual removal was necessary. And in the present case in one respect a similar question might arise, that is, whether it coxxld become necessary to remove this property upon the mortgage to the plaintiff, or whether, indeed, if before the mortgage the business had been under the exclusive control of the plaintiff, there could be any change so as to give him any more notorious possession. And the plaintiff's requests seem to have reference exclusively to this point. And if the court had charged contrary to those requests, it certainly would have been error. But we do not understand the court to have done so. They only say that after the mortgage the plaintiff must have taken and retained exclusive possession, and that there must have been such a change in the transaction of the business there that upon inquiry those interested could have learned the change of title. We do not understand this to import that it must have been so arranged that a mere looker on could spell this out by his own observation, but only that upon inquiry he could find it out. And [392] this seems to us reasonable, and that a charge merely in the form of the plaintiff’s requests without this qualification would have been objectionable, because it might have led the jury to suppose no change whatever was necessary in the conduct of the business. And we think after the plaintiff took a mortgage of the entire stock the workmen should have been exclusively under his control, and in such a manner as to have known it themselves at least.' And if they had known it, then any one interested, making the proper inquiry, could have learned that the business was conducted exclusively by the plaintiff, and this must lead them directly to the plaintiff for further inquiry, when they would at once learn the change of title, and this is all which the charge seems to indicate. But taking the uncontradicted testimony in the case, it certainly seems to very strongly countenance the other alternative in the charge upon which the jury were directed to find a verdict for the defendants. The very contract of mortgage in terms secures the exclusive control of the business to the mortgagors, with the single exception of “ keeping the amount of said stock good, so as not to weaken or impair the security the said Parker may have in the same.” In the former part of the writing it is stipulated that Parker shall have the use of the buildings, yard, &c., “ for the purpose of beeping the above stock.” Taking this altogether it seems to provide either for a joint possession, or a mixed posses-session in the two, or to speak mox'e accui’ately, perhaps it does provide for a constructive possession in Paiker by a lease of the buildings and an actual possession and control of the entire business by Tarbell, the mortgagor, and this is no sufficient charge of possession. And the other uncontradieted facts seem to confix-m this view. Frizzle, the principal workman in the tannery, seems to have been hired and paid, and taken his instructions, if he had any, from Tarbell, for he was not on speaking terms with Parker it is said in the case. And Parker all this time, it is said in the case, was employed on one of Tarbell’s fai-ms, and Tax-bell’s clerk kept the accounts of the concern. This is the defendants’ testimony merely, but it is mostly uncontradicted in the detail, and it seems to us to justify the charge given, and if believed by the jury as from the verdict we are to infer it was, it showed no [393] legal change of possession whatever. While upon the other hand the jury, under the instructions given, if they had believed the plaintiff’s testimony, must have given a verdict for him. The charge, as given, seems to conform to the decisions of this court, and the illustrations given by the judge do not seem to us objectionable. It is said the jury were not told what reasonable inquiry was. That could only be defined by saying it was such inquiry as a prudent and careful man would make upon a subject of equal importance, in which he was interested, and that is no more definite than the expressions used; Stephenson v. Clark, 20 Vt. 624; Bonons v. Stebbins, 26 Vt. 659. The charge in this case certainly excludes the idea that the plaintiff could be said to have the exclusive control and possession of that business, when it was carried on by workmen who were employed and paid by Tarbell, although he did it at the request and for the benefit of the plaintiff and the plaintiff paid him. This is the possession of Tarbell and not of the plaintiff. The law requires that all such agency and control of the vendor should be excluded, and that is all the charge required, and if the court had explicitly complied with the plaintiff’s request, in addition to what they did say, it would not vary the legal effect of the charge, as given. One alternative of the charge is substantially what the plaintiff requested; that is, if he held exclusive possession of the property, after the mortgage, his title was good. This the charge recognizes. How he held it before the sale is not important. Judgment reversed.