Bailey v. Henderson

D. Vermont

Bailey v. Henderson

2 F. Cas. 373, 9 Ben. 534

DecidedMay 15, 1878

StatusPublished

This text of 2 F. Cas. 373 (Bailey v. Henderson) is published on Counsel Stack Legal Research, covering District Court, D. Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bailey v. Henderson, 2 F. Cas. 373, 9 Ben. 534 (D. Vt. 1878).

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Opinion

WHEELER, District Judge.

This cause has been heard on pleadings, proofs, and agreements.

The logs in question were to be delivered by the defendant to the bankrupt “at his saw-mill.” They had not been delivered when the absolute sale was changed to a conditional sale. The first note, if received in payment, would take the cause out of the operation of the Statute of Frauds, but it would not obviate the necessity of delivery according to the contract. After it was received the defendant had the logs to haul to the mill in order to fulfil the contract. While that remained to be done, the sale was not executed. Gibbs v. Benjamin, 45 Vt. 129. Until it was executed, the parties could by mere agreement change it from an absolute to a conditional one. The bankrupt could sell them back and no delivery or change of pos[374]*374session would be necessary. Having done that, he could buy them again conditionally. They did this in effect when they agreed to change the sale, and the lien reserved was valid. Wright v. Vaughn, Id. 369, differed from this case. There the property had been fully delivered before the parties to the sale undertook to change it.

This lien appears to have been recorded in ample season. The time begins to run from the delivery of the property, not the date of the lien. Laws Vt. 1872, p. 90.

These logs appear to have been mingled with others, and sawed and piled so the lumber could not be distinguished, with the consent of the defendant, by the bankrupt. Under these circumstances they owned the lumber in common in proportion to their respective interests in the logs. Inst. lib. ii. tit. I.§ 27; 2 Kent, Comm. 364; Ryder v. Hathaway, 21 Pick. 298; Pratt v. Bryant, 20 Vt 333. The share held by the defendant by virtue of his lien he had the right to take, as he did take. The rest of this common lumber, and some other, he appears to have taken in part payment of his claim, at a time when the bankrupt was insolvent, with such a view on the part of the bankrupt to give him a preference, and such knowledge of the purpose and of the insolvency on his part as to make the transaction void.

On these conclusions the orator, as assignee, is entitled to recover the value of the bankrupt’s interest in the whole of the lumber taken. This is found at the price they agreed upon, with interest, to be $237.94. Let a decree be entered for the orator accordingly, with costs.

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WHEELER, District Judge.

This cause has been heard on pleadings, proofs, and agreements.

The logs in question were to be delivered by the defendant to the bankrupt “at his saw-mill.” They had not been delivered when the absolute sale was changed to a conditional sale. The first note, if received in payment, would take the cause out of the operation of the Statute of Frauds, but it would not obviate the necessity of delivery according to the contract. After it was received the defendant had the logs to haul to the mill in order to fulfil the contract. While that remained to be done, the sale was not executed. Gibbs v. Benjamin, 45 Vt. 129. Until it was executed, the parties could by mere agreement change it from an absolute to a conditional one. The bankrupt could sell them back and no delivery or change of pos[374]*374session would be necessary. Having done that, he could buy them again conditionally. They did this in effect when they agreed to change the sale, and the lien reserved was valid. Wright v. Vaughn, Id. 369, differed from this case. There the property had been fully delivered before the parties to the sale undertook to change it.

This lien appears to have been recorded in ample season. The time begins to run from the delivery of the property, not the date of the lien. Laws Vt. 1872, p. 90.

These logs appear to have been mingled with others, and sawed and piled so the lumber could not be distinguished, with the consent of the defendant, by the bankrupt. Under these circumstances they owned the lumber in common in proportion to their respective interests in the logs. Inst. lib. ii. tit. I.§ 27; 2 Kent, Comm. 364; Ryder v. Hathaway, 21 Pick. 298; Pratt v. Bryant, 20 Vt 333. The share held by the defendant by virtue of his lien he had the right to take, as he did take. The rest of this common lumber, and some other, he appears to have taken in part payment of his claim, at a time when the bankrupt was insolvent, with such a view on the part of the bankrupt to give him a preference, and such knowledge of the purpose and of the insolvency on his part as to make the transaction void.

On these conclusions the orator, as assignee, is entitled to recover the value of the bankrupt’s interest in the whole of the lumber taken. This is found at the price they agreed upon, with interest, to be $237.94. Let a decree be entered for the orator accordingly, with costs.

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2 F. Cas. 373, 9 Ben. 534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-henderson-vtd-1878.

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