Chase v. Snow

48 Vt. 436

Opinion

The opinion of the court'was delivered by

Wheeler, J.

The plaintiff’s evidence appears to have tended to show, that Abram F. Chase, the debtor, agreed to’ deliver this lumber on the premises of the plaintiff in the occupancy of Hix, for the plaintiff, and that the plaintiff agreed to pay him for it what it cost him; that Hix, who was entitled to the possession of the premises, knew of the arrangement, and the case does not show that he made any objection to it. As the plaintiff was to pay what it cost, and not by the quantity after it was so delivered, there was no measurement, nor anything tó be done about the lumber itself by Abram E. The cost of it was only to be figured up, to ascertain the price. If this evidence was true, and it does not appear to have been contradicted, and if it had been, the plaintiff would have been entitled to have the truth of it tried, when the lumber was so delivered, it was delivered to the plaintiff on his own premises, and thereafter it was out of the control of Abram E., and in the control of the plaintiff, and there was by that act of delivery a full and complete change of possession. If true, the lumber was the plaintiff’s in his own possession, and he owed Abram E. for it until he made payment. The plaintiff requested the court to charge the jury, that this would be the effect of such a delivery; but the court declined to so charge. The court did charge that if the lumber was in the plaintiff’s possession when he paid for it, he could hold it, which was so far correct ; but as the jury had not been told that such a delivery on such an agreement would put the lumber into .the plaintiff’s possession, the plaintiff did not have the benefit of the charge he asked and was entitled to.

Judgment reversed, and cause remanded.