Page v. Thrall , 11 Vt. 230 ( 1839 )

The opinion of the court was delivered by

Bennett, J.

There are several questions raised on the argument of this case, but as there is one objection which is fatal to the plaintiff’s recovery, there is no occasion to pass upon the others. The action was commenced on ihe 30th of March, 1837, and the only ground of defence necessary to consider, is the statute of limitations.

■ The plaintiff’s return on the execution is plenary evidence against him that the demand was then made, and the right of action would then accrue on the receipt, unless this is to be varied from the common case of an officer’s receipt. It has been urged that this receipt is in the alternative, giving the defendant the right to return the property or indemnify the plaintiff at his election ; and that if he did not return the property on demand, the alternative of the contract became absolute, and that no action would accrue on the contract till the plaintiff had been damnified. But this is not a sound construction of the contract, and cannot be conformable to the intent of the parties. The plaintiff had no power to make any disposition of the property, otherwise than for safe keeping, and to construe this contract, in effect, as a conditional sale would pervert the very object of the parties.

The only effect, which the latter, clause in the receipt can have, is to measure the extent of the defendant’s liability, and is no more than the legal result of a non-delivery of the property. Substitute the word “and” for “or,” and no one would think of making a question, and this gives the contract according to the intent of the parties, In Catlin v. Lowry, 1 D. Chip. R. 396, it was held that a stipulation in an officer’s receipt for property attached, to return the property on demand or pay all costs and damages, was an absolute promise to return the property on demand, and that the rule of damages was the value of the property. So in the case of Sibley v. Story, 8 Vt. R. 15, the stipulation in the receipt was to return the property on demand, or pay the debt and all costs, on account of not delivering it; and this was held to be an absolute promise to return the property on demand, and that the only effect of the latter clause in the receipt was to give the rule of damages. We can have no doubt what must be the legal effect of the defendant’s contract, and that the plaintiff’s right of action was complete upon the making of the demand, and consequently, the statute must be a bar. — , On this single ground the judgment below is reversed, and a new trial granted,