Sherman v. Estey Organ Co. , 67 Vt. 550 ( 1895 )

TAFT, J.

The testimony disclosed by the record had a tendency to show that the note given to Herrick, signed by Waite and the plaintiff as surety, was the plaintiff’s note to pay, notwithstanding the word surety was affixed to his name. The plaintiff testified that Herrick would advance the money provided he, the plaintiff, would ‘ ‘become responsible for it when due.” “That he was to be responsible for this money to Herrick.” Mr. Herrick deposed that he said “I wanted Sherman to understand thoroughly that I expected him to pay it the time it was due.” Now while it is true that the plaintiff, if he signed the note as surety, would be responsible for its payment, the language used is susceptible of the construction that he was to be more than a mere surety — that he was to be the principal in the transaction. This testimony, taken in connection with the fact that a different arrangement was made between the plaintiff and Waite, than the usual one between them when the plaintiff signed a note with Waite as surety, viz. : That a note was given by Waite to the plaintiff for a like amount, and a mortgage given to secure it, had a tendency to show that the note held by Herrick was the note of the plaintiff to pay, and the note described in the condition of the chattel mortgage an absolute one, and not held as collateral. Under such circumstances the chattel mortgage was valid. The question should have been submitted to the jury.

The chattel mortgage, if null as to third parties, was valid as between the plaintiff and Waite. The defendant had notice of it, and after notice took a bill of sale of the mortgaged property to secure,_ or in payment of, a precedent debt. If the plaintiff took possession of the mortgaged property he could hold it as against the defendant, even if the mortgage was invalid as to third parties. The testimony tended to show' that he took possession of a part of it.

For this reason it was error to direct a verdict.

Judgment reversed and cati.se remanded.