Hale v. Huntley , 21 Vt. 147 ( 1849 )

The opinion of the court was delivered by

Poland, J.

1. The first question presented by this case is in relation to the plaintiff’s interest in the coal at the time of the tak* ing by the defendants. It appears, that, at the time of the execution of the writing, annexed to the report of the referee, by the plaintiff to Chapman &. Son, the coal was not entirely burned, but the burning was to be completed by the plaintiff; and, as he was to be paid for the same by the bushel, which would, of course, require the poal to be measured, and this could not be done until after the burning of the coal became complete, and no delivery of the coal was taken by Chapman & Son, we think there was not such a sale of the coal, as would divest the plaintiff of the property in the coal and vest the same in Chapman & Son. The general rule, in relation to the sale of personal property, is, that, if any thing remain to be done by the seller to the property before delivery, no property passes to the vendee, even as between themselves. Chit, on Cont. 375.

2. Was the coal in such condition, at the time of the taking by the defendants, as not to be subject to attachment by the plaintiff’s creditors 1 It is claimed by the plaintiff, that the coal in this case was in such condition, as to be within the doctrine of the case of Wilds v. Blanchard, 7 Vt. 138, and so not liable to attachment. It is to be remarked, that the exemption, which was sustained in that case, is not an exemption by statute, but one in contravention of the general laws of the state, and, of course, is not to be extended beyond the necessity, which dictated and justified the decision, >vhich was made in that case. In that case the coal pits were only ¡about half burned, and entirely incapable of removal by the officer, and in such condition, as to require the constant and active care and attention of some person, skilled in the business, for several days, in order to render the property of any value. The court, in that case did not decide, that, if the officer had chosen to take upon himself the burden of the completion of the coal, he had not the right to do so, but decided merely, that he was not bound to do so, and, inasmuch as in that case he did not do so, but suffered the same to remain in the owner’s hands, who went on and completed the same without apy direction from the officer, and then disposed of it, that the officer could not claim the coal by virtue of his attachment.

Ip this case the facts are widely different. A part of the coal was entirely finished and completed, so as not to require any farther attention, or labor, and the residue had so far progressed, as to have been entirely burned to coal, though some labor and skill were still necessary in order to separate and preserve it properly; and nothing appears from the report, but what the same might all have been secured. Under these circumstances, (without saying what the officer might be compelled to do,) if the officer saw fit to attach and take possession of the coal and run the risk of being able to keep it safely, we think he had the right to do so, and that we do not at all controvert the decision in Wilds v. Blanchard by so deciding. It is of course impossible to lay down any precise rule on this subject, as the circumstances and description of the various kinds of property subject to attachment are so widely varied, — and especially of articles in process of manufacture; which, of course, will be found in all stages, from the very commencement, to entire completion and perfection. When property, as in the case of Wilds v. Blanchard, would be entirely valueless, and be destroyed, by having the process of manufacture stopped, it is clear, that the officer is not bound to attach and risk the loss; neither is he bound to turn artist and carry forward the process of manufacture. At what precise point this obligation attaches, must of course depend upon the circumstances-of each particular case," and cannot be made the subject of a general rule.

3. The property being subject to attachment by the defendants, the only remaining question relates to that portion of the property, which was suffered to be consumed for want of proper care and attention by the officer. It appears from the report of the referee, that this was occasioned by a delay, produced by a negotiation between the defendants and Chapman & Son, who claimed the coal, which negotiation was with the knowledge of the plaintiff. We are hardly satisfied by this statement, that the plaintiff should be made responsible for the consequences of the delay, as it is not stated to' have been at his request; neither are we entirely satisfied, that the-consent given by the plaintiff, for a sale of the property on the fifth', of March instead of the tenth, as advertised, was intended to be any thing more than a mere substitution of one day for another, for the1 sale, reserving all the rights which the plaintiff would have had, if the sale had proceeded agreeably to the advertisement of the officer. But, on this part of the case, we think the plaintiff is not entitled' to re'* cover, because his claim is merely for the nonfeasance of the officer, in not taking proper care of the property attached ; and this court have recently held, in the case of Abbott v. Kimball et al., 19 Vt. 551, that such nonfeasance will not make the officer liable in trespass, or trover, and that, when such nonfeasance is permitted or suffered by a deputy sheriff, the action should be against the sheriff and not the deputy, and that the creditor is not liable for it, unless done by his command or assent, — neither of which appear in this case. '

On the whole, we see no error in the judgment of the county court and the same is affirmed.