Bullard v. Billings , 2 Vt. 309 ( 1829 )

Hutchinson, J.

delivered the opinion of the Court. — The plaintiff claims to recover the value of a waggon, his title to which is derived from one Lodge. The defendant denies that Lodge had any title, or, if any, not any except by a pledge to him by defendant*

It is correctly urged by the plaintiff’s counsel, that, what Lodge has said, since he parted with his right, can be no evidence of a pledge, as against his vendee or the plaintiff, who holds under him. And, as the period of his statements was uncertain, the jury ought to have been instructed wholly to disregard them, unless they could understand, from some circumstance, that those statements were made before he sold the waggon to Sawyer.

. The defendant also contended that Lodge had collected his demand for which this waggon was pledged. The case shows, that there was testimony tending to prove, that Lodge, subsequently to his sale to Sawyer, had instituted a suit upon his claim ; had recovered judgment and levied his execution upon lands of which the title was doubtful. If this title fails, his debt is not paid. What will be the result, is yet uncertain, according to that testimony. And the defendant, if he contends that he delivered the property to Lodge as a pledge, and that his right is restored by redemption of the pledge, must show that satisfactorily. It may Ibethat the sum was many times as. large as the value of the wag-gon ; and the object of Dodge’s suit might have been to recover the balance. What testimony there is about the pledge leaves all so dark, it is bot probable the jury could have found any pledge, or, if any, found nothing of its nature.

Sawyer, for plaintiff. Young and Mason, for defendant.

But the charge of the court was, that if they found a pledge, that would create in Dodge no interest, that would enable him to make a valid sale. This we deem incorrect. We see no reason why he could not convey the same interest he, himself, had. It is true, the terms of a.pledge may be varied to any extent, as the parties shall agree. But the defendant has not shown what were, the terms of the pledge he contends for : of course, he was not entitled to the charge given upon this point.

The court, also, after charging the jury, that, if Billings had sold the waggon to Dodge, the plaintiff must recover, instructed them, that the fact, of Dodge’s possession and use of the waggon, was not sufficient to show a sale. This probably means sufficient in kind. We think this should have been left to the jury as proper evidence in proving the fact of an actual sale. They, to be sure, must weigh this in connection with the other circumstances in the case. If the proof convinced them, that, when the defendant had used the waggon several years, it passed into the possession of Dodge, and he used it as his own two or three years, the defendant being a near neighbour, and never being known to pretend any right to the waggon during that time, and nothing appeared to rebut this, they might infer a sale. But proof that Dodge did not claim to be owner, or that the defendant claimed that he had only lent the waggon during the time that Dodge was using it — -that would diminish the weight of testimony, and might produce a different verdict. The case of Moon vs. Hawlces, reported in 2d of Aikens, is full to this point. It seems this part of the charge cannot be supported.

Let there be. a new trial, and let the cause pass to the county court for that purpose.