Barrett v. Kelley

ROSS, C. J. On the agreed facts, by the terms of the order given by the insolvent, at St. Albans, the agent who took the order was only a soliciting agent, with no authority to make an absolute contract which would bind E. C. Morris & Co. to a sale of the safe in controversy. He could simply take an order therefor, from the insolvent, and transmit it to E. C. Morris & Co., who resided in Boston, and who then had the safe in their possession at Boston, to be there accepted and approved of by E. C. Morris & Co. When E. C. Morris & Co., in Massachusetts, accepted the order the contract became a Massachusetts contract, as much so, as it would have beep, if the insolvent, in person, had, in Boston, given the order, and E. C. Morris & Co. had there accepted it, the safe then being there in the possession of E. C. Morris & Co. By the terms of the order and its acceptance, the safe was to remain the property of E. C. Morris & Co. until fully paid for. It is agreed that, under the laws of Massachusetts, E. C. Morris & Co. could hold [518] the safe against insolvency proceedings and attaching creditors. The defendant, Kelley, stands in the rights of E. C. Morris & Co., and the plaintiff, in those of the creditors of the insolvent, O. R. Swett. Collender Co. v. Marshall, 57 Vt. 232. The question, therefore, is whether the contract for the sale of the safe which was made in Massachusetts, and the safe, which by the laws of that state was exempt from attachment and execution by the creditors of O. R. Swett, and from insolvency proceedings against him, became subject to the laws of this state, in regard to attachment, execution and insolvency proceedings, the same they would have been if the property had been in this state and the contract'for its conditional sale had been made here? On the authority of Cobb v. Buswell, 37 Vt. 337, where this question was fully considered by this court, it must be held, that the rights of E. C. Morris & Co. to the safe, remain .and, by comity of law, will be in force here, the same as fixed by the contract under the laws of Massachusetts, where the safe was, and the contract in regard to its conditional sale was made. Under this view of the contract, and law governing it, and the safe which was the subject of the contract, the Judgment of the county court is reversed, and judgment rendered for the defendant to recover his costs.