Fales v. Roberts

The opinion of the court was delivered by Wilson, J. This is an action of replevin, and the only question important to consider is whether the tender was seasonably made ; and the decision of this question depends upon the construction the court give to the statute authorizing the attachment of the property by the defendant. No question is made but that the interest of Gray in the property, at the time of the attachment, was that of a vendee under a contract of sale where payment of the purchase money is made a condition precedent to the transfer of the title. The case shows that the property was attached by the defendant as deputy sheriff on the 4th day of May, 1864 ; that the defendant on the 6th day of May, 1864, was informed and notified by the plaintiff of his claim on the property, and the defendant on the 25th day of June, 1864, caused to be tendered to the plaintiff in this action thirty-six dollars, for or on account of the claim of the plaintiff, and he refused to receive it. Independent of the statute, property thus situated [507] could not be lawfully attached, and under the statute the right of the attaching creditor to hold the property depends upon a substantial if not strict compliance with its provisions. The statute provides that any creditor of the vendee may attach the property, or levy his” execution upon it, and upon payment or tender of payment of such unpaid purchase money to the vendor his agent or attorney within ten days after notice thereof of the amount remaining unpaid, may hold the property discharged from the claim of such vendor thereon. The contract between Fales and Gray was that the latter should make payment within three months from the 25th day of March, 1864, and the defendant claims, and such was the ruling of the county court, that the attaching creditor was, in respect to the time of payment, substituted to the rights of the vendee. A brief consideration of the nature and object of conditional sales, the provisions of the statute authorizing the attachment of the vendee’s interest in the property, and of the evident intention of the legislature in the provisions made to protect the rights of the vendor, will afford reasonable and safe rules of interpretation. In case of such sale the payment of the purchase money is made a condition precedent to the transfer of the title. The property under such sale ordinarily passes into the possession of the vendee for his use until the time of payment arrives. The vendor seldom has any security for payment except his lien upon the property. Pit is understood, and the vendor expects, that the vendee will use and]take such reasonable care of the property as would _ be required of a bailee for reward. The vendor is supposed to have personal knowledge of the customary usage of like property by the vendee, and that in his hands it would not be likely to deteriorate in value beyond what would naturally result from careful usage. To a considerable extent such sale is founded upon personal confidence and trust arising from the vendor’s knowledge of the probable safety of the property in the hands of the vendee. It is a confidence and trust which the vendor might not be willing to repose in the attaching creditor ; and it is a trust which the vendee has no power to transfer until the condition of the sale is complied with. Hence the statute provides that payment or tender of payment of the unpaid purchase money, shall be made within ten days after notice of the amount remaining unpaid. [508] It will be observed that the time fixed in the statute, within which the attaching creditor is required to make payment, is less than the time within which he would be authorized by law to dispose of the property by sale, either upon the writ or execution. We think it apparent, that the legislature, while providing a remedy for the creditors of the vendee, which prior to the statute did not exist, intended to protect the rights of the vendor, and not allow the property, before such payment, to pass permanently into the hands of the attaching creditor, nor into the hands of any person who should purchase it at auction sale, who might be a transient and irresponsible person. By the attachment in such case the property is usually taken out of the possession of the vendee, and, if he had no agency in the attachment, his relation with the vendor in respect to the property, and his responsibility for the property, are discharged. Other and different relations, rights and liabilities are created by the attachment. These relations, rights and liabilities do not result from any contract of the parties ; they exist by force of the statute, and its provisions must be complied with in order to render the attachment available. We are entirely agreed that the plaintiff was entitled to payment or tender of payment of his claim on the property, or the property itself, within ten days after notice of the amount remaining unpaid was given to the attaching creditor. To illustrate the correctness of this position, let us suppose the property to have been sold on a credit of one year, and that the attaching creditor is insolvent, resides without this state, or moves from the state previous to the time of payment, and in the mean time the property is destroyed or carried beyond the reach of the vendor; now under any other rule than the one herein laid down, the probable result would be a total loss to the vendor. It is urged by the defendant that the plaintiff could not have been compelled.to receive payment until it was due by the terms of the contract, and there being controversy as to the amount remaining unpaid, he was not required to make payment or tender of payment within the time named in the statute. The rights of both veridor and attaching creditor in such case are regulated by the statute. It requires payment to be made or tendered within a given time, without regard to the time stipulated in the con [509] tract, and if the tender is sufficient in amount, and Aade within the time limited by the statute, it is wholly immaterial to the rights of the creditor whether the vendor accepts it. The statute giving the right to attach the property, also gives the right and imposes the obligation to make the tender, and we are not able to discover how there could exist any more practical difficulty in making a tender in this case than might exist in making a tender in any other ease where there is dispute as to the amount remaining unpaid. In Rowan v. Union Arms Co. et al., 36 Vt. 135, the court held, under the peculiar circumstances of the case, that the intervention of a court of equity was necessary in order to determine the sum remaining due, so that payment or tender of payment could be made, but the rule adopted in that case is not applicable to this case. The views of the court above expressed render it unnecessary to consider the other exceptions taken to the ruling of the county court. The judgment of the county court is reversed, and the case will be remanded to the county court for assessment of the damages, unless the plaintiff will consent to nominal damages. Judgment for the plaintiff for nominal damages and his costs.