Taylor v. Finley

Opinion of the court was delivered by Peck, J. Neither the executor nor administrator of the estate of Batchelder, the deceased, is a party to the suit; nor does it appear that the estate of Batchelder is to gain or lose by the event of the suit. The fact that the plaintiff acquired his title and possession of the cow under a contract of purchase of Batch-elder, “ with the condition that said cow was to remain the property of said Batchelder till said note ” executed by plaintiff to Batchelder therefor, " was paid,” and the subsequent death of Batchelder after the transfer of the. note by him, overdue, to the defendant, do not deprive the plaintiff of the right to testify to payments made by him to Batchelder upon the note that were not indorsed thereon. The facts do not bring the case within the principle, policy, or settled construction of the proviso of s. 24, c. 36, Gen. Sts., prohibiting one party from testifying in his own favor where the other party is dead. The cases referred to by the plaintiff’s counsel are decisive of the question ; to which may bo added Downs v. Belden, 1874, 46 Vt. 674, which is identical in principle, and almost identical in its facts with the present case so far as this question is concerned. The case states that, “ it appeared in evidence that the cow in question was purchased by this plaintiff from one John R. Batch-elder, for the sum of fifty dollars, for which the plaintiff made his note in favor of said Batchelder, or bearer, with the condition that said cow was to remain the property of said Batchelder till said note was paid, annexed thereto.” It appears that the cow in question was taken by the defendant from the plaintiff’s possession under a claim of ownership in himself, by virtue of'said, note, at a time when the plaintiff and all his family were away from home, and without having given the plaintiff any notice that [82] he should take the cow unless the balance duo on the note was paid. The case states that the plaintiff’s evidence, uncontra-dicted, was, that when he made the claim to the defendant.of having made a payment of twenty-five dollars on the note to Batchelder, the defendant agreed to let the matter rest till they could hear from Batchelder, who was then supposed to be living, and that Batchelder had not been heard from at the time the cow was taken. In addition to this, the jury have found that the ten dollars which the plaintiff, just before the retaking of the cow on this writ of replevin when he demanded the cow, tendered to the defendant, and which the defendant refused, was enough or more than enough to pay the balance due on the note. The defendant, upon these facts, claims to hold the cow upon the ground of a forfeiture on the part of the plaintiff, of all ho has paid upon the purchase — a forfeiture of all right to pay the remaining fifth of the purchase price, and thereby perfect his title. Forfeitures are odious, or in milder language, are not favored in law ; and whoever claims title by forfeiture against manifest justice, is held to strict law. The note referred to has not been furnished to the court, we therefore take the contract of purchase as it is stated in tho exceptions. It is to be noticed that the contract of purchase was not on condition that the plaintiff pay the note when it should become payable, but was " with the, condition that said cow was to remain the property of said Batchelder till said note was paid." Under such contract, the mere omission of tho purchaser to pay the note given for the purchase price at maturity, would not operate as a forfeiture of his rights under the contract, in the absence of a demand on tho part of the seller or his assignee, of payment, or of the property for non-payment of the price ; and on such demand even after, the note was overdue,the purchaser' would have the right to pay the note and retain the property which ho received under the contract. It does not appear that either Batchelder or the defendant ever demanded the property or payment of the note, or gave the plaintiff any notice that they should take the property unless the balance due on the note was paid; but on the contrary it affirmatively appears that the defendant took the property in the absence of the plaintiff and his family, [83] without any notice of his intention to take it. It is clear that the plaintiff in tendering the balance due on the noto and demanding the cow, was in the exercise of his legal right, and that there is no error in the ruling of the County Court of which the defendant has a right to complain. Had it appeared that the contract was such that by its terms a simple omission to pay the note at maturity would entitle the seller to treat the contract as forfeited, other questions might arise as to the receipt of partial payments upon the note operating as a waiver of all prior causes of forfeiture arising from default of payment. To determine these questions, the time of the payments in reference to the time of the maturity of the note should appear. A party entitled to the benefit of a foi'feiture often loses it by not manifesting in season his election to take the benefit of it; but as the view already, taken is decisive of the case, it is unnecessary to discuss other'points. The plaintiff’s counsel insists that the plaintiff is entitled to judgment for the largest sum in damages named in the special verdict; but as the County Court decided otherwise, and the plaintiff did not except, this question is not before us, and all the plaintiff is entitled to is an affirmance of the judgment of the County Court. Judgment affirmed.