Page v. Edwards

The opinion of the court was delivered by ROWELL, J. The defendant makes the case depend mainly or wholly on the nature and effect of the contract or arrangement between Page & Noyes and Larnplough, under which the property in question went into the latter’s possession in the spring of 1881; whether it went into his possession as a mere bailee,, without any contract of purchase on his part, or whether he took it under a contract of purchase that made him a conditional vendee. It is claimed that the report does not show any completed contract of sale, nor any sale nor arrangement that vested in Larnplough any interest in or title to the property more than [129] that of a bailee ; and that therefore when the property was attached to the mill for the purpose and in the manner shown, with the knowledge and consent of Page & Noyes, who then knew of the defendant’s mortgage, it became and was a fixture, and subject to the defendant’s prior lien under his mortgage. Soon after Lamplough bought the mill of the defendant in October, 1879, he made an arrangement with Page & Noyes, which continued till the time of his death, whereby they were to stock his mill with logs. The firm furnished the money to buy the logs, and Lamplough bought them in its name, sawed them, and delivered the lumber to the firm, which kept an account of the transactions, charging Lamplough with the money advanced, and giving, him credit for the lumber received, it being understood that Lamplough was to have the benefit of the business above advances and interest and a dollar a thousand for selling, guaranteeing sales, and collecting the money; and to make the firm safe, the title to all the logs and lumber was to remain in the firm till it was fully paid. In the spring of 1881, Lamplough wanted to put a wheel into his mill that would give him more power ; and such a wheel would necessitate new shafting, gearing, pulleys, and other tilings to put the mill in good running order. He applied to Page & Noyes for advances for this purpose, and they supplied him with such things as he wanted, buying them in their own names and paying for them with their own money, and Lamp-lough put them into his mill, setting and attaching them in the usual way and in the manner necessary for use. Page & Noyes charged to Lamplough the amount thus expended in the same manner and in the same account that they charged the advances to buy logs, and Lamplough credited the firm with the machinery in a book-account that he kept of his dealings with the firm. Subsequently, and on June 30, 1881, Page & Noyes took a mortgage of the mill and the machinery and of other property, [130] to further secure them against loss, conditioned for the payment of all that Lamplough owed them, called about $1400, which included the amount they paid for the machinery, which was $670. The plaintiff was the only witness who testified to the course of dealing generally between Page & Noyes and Lamplough. lie testified that the firm took special pains to keep the title of the ■property furnished to Lamplough, because he was not responsible ; but he did not testify to any express agreement with Lamp-lough that the firm should have a lien on this property to secure the payment of the price, nor to any talk whatever with Lamp-lough on that subject, nor that the property was ever sold to Lamplough ; but he testified that his deceased partner had the charge of this lumber business, although he himself bought the machinery that was sent to Lamplough, after conferring with Lamplough about the improvements he wanted to make in his mill and the kind of a wheel and other things he wanted. There was no direct evidence that Lamplough ever bought the property, or agreed to buy it. The referee finds that it was understood when the property was delivered to Lamplough by Page & Noyes, that as far as it could lawfully be done, the property was still to remain the property of the firm, that Lamplough was to take it and use it as he did, and that the firm would let him have it when he could pay for it; and he submits to the court whether or not the evidence and the facts detailed in the report have any tendency to support that finding. That the evidence and the facts detailed tend to show a sale, not to- say a conditional sale, does not admit of much doubt, we think. It is not necessary that there should have been direct evidence of a sale. Anything fairly tending to show that the parties understood.the transaction as a sale is enough ; and that they did understand the transaction to be a sale is evidenced by the facts that Page & Noyes debited Lamplough with the amount they paid for the machinery; that Lamplough credited them with [131] the machinery; that Lamplough used the machinery in a manner that makes against the idea that he was a mere bailee of it, and in favor of the idea that he was a purchaser of it; and that he secured the price of it by mortgage. A sale being properly found, the testimony of the plaintiff, that his firm took special pains to keep the title of the properly it furnished Lamplough, was quite susceptible, in the circumstances of this case, of being construed to refer to and include the property in question as well as other property; and being thus construed, it tended to show that this sale was conditional. The plaintiff, then, is entitled to stand on the ground of a «■ conditional sale unless the case contains elements disentitling him to stand there. Treated as a conditional sale, the cases of Davenport v. Shants, 43 Vt. 546, and Buzzell v. Cummings, 61 Vt. 213, are decisive in plaintiff’s favor, unless this case is distinguishable. The doctrine of those cases is, that water-wheels and other mill machinery attached to mills as this was, retain their identity and character of chattels as against a mortgagee whose mortgage rested on the mill when the machinery was attached, and that the conditional vendor thereof has a right thereto superior to that of the mortagee, and may assert it against him. But it is claimed that this case is distinguishable from those, in that here machinery in place when defendant took his mortgage was removed, and changes made in the building, to make room for the machinery in question, and that to remove tin's wheel would necessitate a destruction of the pen-stock and the box or in closure around the wheel. But in Buzzell v. Cummings the wheel in controversy was substituted for one in place when the mortgage was given, although it was removable without material injury to the building. But whether so removable or not is not the test. The point of those eases is, not that the machinery in one and the wheel in the other were removable without injury to the buildings, but that the mortgagees were not misled, and had parted with nothing on the faith of the [132] machinery and the wheels being a part of the realty; and that therefore the conditional vendors title was just as good against them as it was against the conditional vendees themselves. It is further claimed that the vendors waived their lien by taking their mortgage. If such a lien comes within the category of liens waivable in that way, it is manifest that this lien was not waived; for the report finds that the mortgage was taken as further security, which rebutts the presumption of a waiver, as it shows an intention not to waive; and whether waiver or not is matter of intention. ; There is no ground for the claim that the foreclosure of that mortgage wras a satisfaction of the lien, as the report finds that over four hundred dollars remained due after applying the value of the property obtained by the foreclosure aside from this -machinery. Nor is plaintiff’s title barred by the Statute of Limitations, as claimed; for there does not appear to have been any adverse possession by Lamplough for any length of time. Judgment affirmed.