Whitcomb v. Woodworth

The opinion of the court was delivered by Ross, J. The contract of April 1, 1878, we think, was, in legal effect, a conditional sale of the organ from the plaintiff to Weston. The amount stipulated to be paid, as rent, for the use of the organ, for one year, was the full value of the organ. For the last payment the plaintiff took Weston’s note with a surety. There is no provision in the contract, by which Weston could return the organ at the end of the year, or at any other time, an essential element in a lease or bailment. The clause in the contract : “ It is expressly understood that until the whole sum of one hundred and fifteen dollars, and interest on the same, is fully paid to said Whitcomb, I neither acquire, nor does he part with his interest and ownership of said organ,” implies that upon the payment by Weston of the sum named, the property, and ownership of the organ, was to pass from Whitcomb to him. Being a conditional sale of the organ, although attempted to be disguised under the form of a lease, and the written instrument evidencing the contract, not having been recorded agreeably to the statute, it was attachable as the property of Weston unless the plaintiff had notice of the contract of conditional sale between the plaintiff and Weston. The statute R. L. sec. 1992, declares that the lien reserved to the vendor by such unrecorded sale shall be invalid as against attaching creditors or subsequent purchasers without notice. Having failed to place upon record the contract evidencing the sale, the organ was open to attachment as the property of the conditional vendee, unless the plaintiff could show that the attaching creditor had notice of conditional sale. The referee has not found thstt the defendant, the officer who made the attachment, nor that the attaching creditor had notice of the conditional sale. It is contended, however, that the officer, by finding the organ, not in the possession of the conditional vendee, [548] but iu the possession of I. N. Austin, was put upon inquiry, and by inquiry would have learned of the conditional sale. It is true that under the decisions of this court, where an officer, about to attach personal property, finds it, not in the possession of the debtor, but in the possession of a third person, he is to take notice of this fact; and is to inquire of such third person for whom he is holding possession of the property. Flanagan v. Wood, 33 Vt. 337. This is upon the ground that possession is prima facie evidence of ownership of' personal property ; so that finding the property in the possession of a person other than the debtor, he is bound to inquire of such person, and learn for whom he is holding possession. Whether this doctrine applies to an officer attaching property sold conditionally, it is needless to decide in this case, inasmuch as on the facts found by the refei’ee all that the officer would have learned by inquiry was, that I. N. Austin had signed with Weston the note for the last payment, and that he had borrowed the organ of Weston for a special occasion, only a few days before the attachment was made. There is no fact found that shows he would by such inquiry have learned of the conditional sale. It is also contended that I. N. Austin, by the terms of the contract, was to have possession of the organ. All that the contract contains on this subject is that the organ was not to be let by Weston, nor removed from the premises of I. N. Austin, without the written consent of the plaintiff. Weston occupied premises owned by I. N. Austin. We think that the construction to be placed upon this portion of the contract is that Weston was to have the possession of the organ, but was not to let the same, nor remove it from the premises of Austin, where he then lived, without the written consent of the plaintiff. The result is that no error is apparent in the judgment of the County Court, and that judgment is affirmed.