John Grant v. Nathaniel King and Edson Comstock, 14 Vt. 367

The opinion of the court was delivered by Royce, J. The facts offered in evidence by the defendants would not have operated to divest the plaintiff of his general property in the oxen, though they would have constituted a bailment of them to King for four years, with the privilege of becoming the purchaser, at an under price, when the term should expire. In the meantime he would stand responsible for ordinary care in the use and keeping, and the plaintiff would be at all the risks of disease and casualty, which the bailor of such property for use commonly incurs.

Such a contract would be manifestly unequal, but I shall not stop to inquire whether the plaintiff would be legally bound to sell upon the terms supposed. Those facts would not have made out a conditional sale, since it was to be optional with King, during the four years, whether any sale should take place. In this respect the case is not as favorable for defendants as that of West v. Bolton, 4 Vt. R. 538, was for the plaintiff.

According to several decisions of this court, the wrongful act of King, in selling the cattle, determined his right of possession and use under the contract proposed to-be shown, and entitled .the plaintiff to immediate possession as owner. To this point the case is identical with that of Swift v. Moseley et al., 10 Vt. R. 208. In that case, it is true, there was evidence tending to show the sale from the bailee fraudulent on the part of the purchasers. But that circumstance does not appear to have influenced the judgment of the court, nor is it even mentioned in their opinion, as delivered by Redfield, J.

The ground of the decision evidently was that the bailee had not power to transfer any such interest in the property as he undertook to convey. This authority is, therefore, equally in point for sustaining the present action against both these defendants. The ease discloses no previous assertions of ownership, or right to sell, on the part of King, and much less any acquiescence in such pretensions on the part of/ihe plaintiff. Under such circumstances it would be sufficient to say, as against the defendant, Comstock, that bought of one who had no right to sell.

And though IpUnay have purchased without express notice of the plaintiff’s property in the oxen, he was still affected by appearances, — the notorious fact that the farm was the plaintiff’s, and that the oxen were a part of the stock kept upon it. The evidence offered would not have shown any legal defence to the action ; and, if admissible for any purpose, it could only be to affect the damages. The question of damages can only be raised in reference to the rejection of that evidence, for the charge was right upon the evidence which was before the jury.

But the principle which restored the plaintiff’s right of possession must have operated at the same time, as we think, to extinguish the supposed right of King to make the subsequent purchase. The principle is, that the bailee, by such an illegal act, not only restores the right of possession to the bailor, but also forfeits his own accruing rights under the contract. This is the doctrine expressly held in Farrant v. Thompson, 5 B. &. A. 826, and sanctioned by this court in the case already cited of Swift v. Moseley et al.

There is no color for the objection that a demand of the oxen was required in this case, as a clear conversion by both defendants was otherwise shown. Judgment affirmed.