SEYMOUR v. CENTRAL VERMONT R. CO. (Supreme Court of Vermont. Chittenden. July 20, 1897.)

RAILROADS INJURIES TO PERSONS ON TRACKNEGLIGENCE-PLEADING.

1. Where plaintiff, while walking, in the exercise of ordinary care, on a portion of defendant's railway track, which had been for many years in constant use by the public as a passageway with the knowledge and implied consent of defendant, was injured through defendant's negligence, such negligence cannot be excused by the fact that such portion of the track was not a public crossing, or that plaintiff was not using it by invitation of or agreement with defendant, or by reason of any inducement held out to him by it, or for the purpose of transacting business with defendant, nor by the fact that defendant was not willfully and recklessly negligent.

2. An allegation that defendant, by its servants, managed the train with gross negligence, in that a long rope was allowed to hang beside the train, far outside, and beyond the side, of the cars, and that such rope caught about plaintiff's arm and hand and dragged him along the ground, is capable of the construction that defendant knowingly allowed such rope to be in the position claimed, and is therefore a sufficient allegation of such fact.

Start, J., dissenting.

standing the existence of the absence of any of the facts above stated, and it is unnecessary for the plaintiff to allege that the defendant was willfully or recklessly negligent. In respect to negligence, it would depend upon whether the defendant was in the exercise of ordinary care. The allegation in the declaration is that the plaintiff was upon the track with the implied consent of the defendant, in pursuance of a long-continued custom, which was known to the defendant, and permitted by it without objection, and impliedly consented thereto. Under these circumstances, the defendant cannot excuse itself from any negligence of which its servants were guilty at the time the accident occurred by showing the existence or nonexistence of any of the facts stated.

The seventh point under the demurrer is that the action cannot be sustained because it is not alleged that the defendant knew, or by the exercise of due care might have known, that the rope was in the position claimed. The allegation in that respect is "that the defendant, by its servants, managed the train with gross negligence, in this: that a long rope was al

Case by William Seymour against the Central Vermont Railroad Company for negligence. Heard on general demurrer to the declaration. To a pro forma judgment sustaining the demurrer and adjudging the declaration insufficient, plaintiff excepts. Reversed.

The declaration alleged that the plaintiff, when he received the injury, was walking on a portion of the railroad which had been for many years in constant use by the public as a passageway with the knowledge and implied consent of the defendant.

H. F. Wolcott, for plaintiff. C. W. Witters, for defendant.

TAFT, J. We notice the questions raised by the brief of the defendant's counsel, and none other. The defendant assigns seven reasons why the declaration is insufficient to establish a cause of action. The first six raise substantially the same question, and are all based upon the claim that the plaintiff was in fact a trespasser upon the roadbed, and therefore the defendant was under no duty in respect to him. The plaintiff may establish his right of action by showing that his injury arose from the neglect of the defendant, if he was in the exercise of ordinary care at the time of the casualty, notwithstanding he was upon that part of the roadbed which was not a public crossing, and although he was not there by the invitation of the defendant, nor by any inducements held out by the defendant to him, and was there without any purpose of transacting business with the defendant. It is not necessary that he should allege that he was using the road by any agreement with the defendant. A legal duty or obligation from the defendant to the plaintiff might arise notwith

side, and beyond the side, of the cars, and that the rope caught about the plaintiff's arm and hand," etc., "and so dragged him along the ground," etc. This allegation is capable of the construction that the defendant knowingly. allowed the rope to hang, drag, etc. While, in a case of doubt, if the pleadings are ambiguous, or when two different meanings present themselves, that construction must be adopted which is most unfavorable to the pleader, still, if the expression is capable of two meanings, that shall be taken which will support the declaration, and not the other, which would defeat it. The allegation in the declaration can fairly bear a construction that the defendant knowingly allowed the rope to drag, hang, etc. The declaration is not subject to the criticism made in that respect. The pro forma judgment is reversed, the demurrer overruled, and the declaration adjudged sufficient, and cause remanded for further proceedings.

AUDITOR'S REPORT-CONSTRUCTION. In an action on a book account against a co-partnership, the auditor reported, allowing the whole account, but finding that some items were for goods sold to one of the partners individually, though he was unable to specify any such items; and, on a recommitment to him, he further reported that he was unable to ascertain that any item was for goods thus sold. Held, that the supplemental report nullified such original finding, and left the whole account to stand as for sales on joint authority.

Exceptions from Franklin county court; Start, Judge.

Action by Julius Barette against Laurier & Ouimette on a book account. Heard on report and supplemental report of auditor. To a judgment for plaintiff fo: the whole account, defendants except. Affirmed.

Dee & George, for plaintiff. E. A. Ashland and H. M. Mott, for defendants.

ROWELL, J. The plaintiff carried on the meat business, and the defendants were partners in the grocery business. Defendants had assignments of the wages of a number of railroad men who traded with the plaintiff on the defendants' orders and pass books. All of plaintiff's account is properly chargeable to the defendants jointly, unless some of it is for meat sold to the defendant Ouimette for his individual use. In his original report the auditor allowed the whole account, but found that some of it was for meat thus sold, but he could not tell how much, nor identify any item.

But in his supplemental report he says he is unable to ascertain that any item is for meat thus sold. This nullifies his former finding on that point, and leaves his allowance for the whole account to stand, and makes it equivalent to a finding that all the items of the account are for sales to others on the defendants' joint authority. It is claimed that the auditor's finding concerning Ouimette's individual account is against the evidence, and that, therefore, the report ought to be set aside. It is also claimed that the auditor did not comply with the order of recommittal, and that, therefore, the report ought to be set aside. It is enough to say of these claims that it does not appear that the questions were raised below. The exceptions say that the case was heard on the report and supplemental report. Judgment affirmed.

INSOLVENCY-PETITION FOR COMMISSIONERS--PARTIES-GROUNDS-STATUTE-CONSTRUCTION.

1. V. S. § 2143, provides that in cases of dispute arising in the settlement of an insolvent debtor's estate, and coming before the judge of the court of insolvency for decision, the judge, in his discretion, may, and upon petition of the assignee, or other person interested, shall, appoint three commissioners to hear and determine the disputed matter and report to the court. Held, that the direction to appoint the commissioners is mandatory, and. must be obeyed, upon proper petition, although the precise question in issue is not pending before the court for decision.

2. An insolvent debtor, whose estate is before the court for settlement, and who is in dispute with the assignee thereof as to their respective rights to certain property, is a party interested, within said statute, and entitled, upon petition, to the appointment of commissioners.

3. In a proceeding to hold an insolvent debtor for contempt of court for the transfer of certain property which is claimed by the assignee as part of the estate, the question of the respective rights of the assignee and debtor thereto is a question fairly before the court for decision.

4. An application, under V. S. § 2143, for the

appointment of commissioners to determine disputed questions arising as to the ownership of property in insolvency proceedings, is sufficient if it fairly apprise the court as to the matter upon which adjudication is sought.

Petition by Albert Sowles and Jennie P. Sowles for a writ of mandamus against Myron W. Bailey, judge. Granted.

E. A. Sowles, for petitioners. Wilson & Hall, for respondent.

THOMPSON, J. This is a petition for a writ of mandamus against the petitionee, who is a judge of the court of insolvency for the district of Franklin, to compel him, as such judge, to appoint three commissioners, under V. S. § 2143. The facts necessary for the decision of this case are as follows: The relator, Albert Sowles, is an insolvent debtor, whose estate is in process of settlement in the court of insolvency for the district of Franklin. Disputes and disagreements exist between him and the assignees of his estate, and also between the relators and the assignees, in respect to the right and interest of the relators in certain real estate, debts, and claims which the assignees claim belong to the insolvent estate. As a result of such disagreement, the assignees on the 1st day of October, 1896, preferred their petition to the court of insolvency, setting forth that the relator Albert Sowles had conveyed by quitclaim deed to the relator Jennie P. Sowles a portion of said real estate in dispute, and therein praying to have him cited before said court to show cause why he should not be adjudged in contempt of court by reason of having made such conveyance, and for such other order and relief as to the court should seem meet. Thereupon the court of insolvency on the same day issued its notice to the relator Albert Sowles to appear before that court October 7, 1896, at 10 o'clock in the forenoon, to make answer to the petition, and to abide by the order of the court thereon. This notice was duly served upon the relator Albert Sowles, and he appeared before the court, and such proceedings were had in the premises that the hearing was continued to the 29th day of March, 1897, at which time the relators filed their petition in said court setting forth that they were "interested in the estate of Albert Sowles in insolvency; * *that there were disputes and disagreements in regard to the allowance of claims or priority of amount of liens upon the estate of said debtor, or the debtor's interest in property exempt from attachment, or other matters in difference, arising from the settlement of the insolvent estate, to wit, the title, liens, or claims of ownership of the real estate alleged to have been assigned to the assignees in August, 1896, being the lands and estate and leasehold estate mortgaged to the Burlington Savings Bank, and the ownership of the claim against John E. Wright, known as 'the Wright contract.' and also the claims described in the alleged citations or motions to appear before the court, as therein fully described, to which said claims

the petitioners, one or all, lay claim, * and alleged as coming before * *the above court for hearing for decision; that some or all of those matters were then pending in proceedings in the court of chancery within and for the county of Franklin, having jurisdiction over the same," and praying the court of insolvency to appoint three disinterested persons to act as commissioners to hear and determine the matters in dispute between the relators and the assignees, and to report to the court their findings in the premises. Such proceedings were had on this petition that on the 30th day of March, 1897, the court of insolvency refused to appoint such commissioners, and dismissed the petition. The citations referred to in the relators' petition for the appointment of commissioners were the petition of the assignees in the proceedings for contempt, and another petition filed in that court by the assignees on the 1st day of October, 1896, charging that the relator Albert Sowles, as an insolvent debtor, withheld a large amount of property from the assignees, and therein describing the same, and praying to have him cited before the court to be examined under oath touching the matters mentioned in that petition. The assignees and Albert Sowles were in fact in dispute and disagreement in respect to his right and interest in the property and claims described in both petitions of the assignees, and in regard to the property, debts, and claims mentioned in the petition of the relators to the probate court praying for the appointment of commissioners.

The petitionee contends that there was no matter in dispute that was before him for decision that justified the appointment of commissioners. He further contends that under the statute a party is not entitled to the appointment of commissioners unless the precise question to be submitted to them is pending before the court for decision at the time application is made for their appointment. Neither of these contentions can be sustained. V. S. § 2143, provides that, in cases of dispute or disagreement in regard to the allowance of a claim, or priority or amount of liens upon the estate of the debtor, or the debtor's interest in a homestead or property exempt from attachment, or other matters in difference arising in the settlement of an insolvent debtor's estate, and coming before the judge for decision, the judge, in his discretion, may, and upon petition of the assignee or a creditor who has proved his claim, or other person interested, shall, appoint three disinterested persons to act as commissioners to hear and determine the matter in dispute, and report to the court their finding in the case. V. S. § 2145, provides for an appeal from the decision of such commissioners. No provision is made for an appeal from a decision of the court of insolvency in matters embraced in section 2143, unless commissioners are appointed as therein provided. One purpose of this section is to provide for an appeal in such matters, and thus give the parties in interest an opportu

nity to have their rights determined in the appellate courts. Under the provisions of this section, any person interested in any matter therein described, and involved in the settlement of an insolvent estate, may apply to the court of insolvency to have commissioners appointed to determine the matter in dispute, and report to the court their finding, without regard to whether the precise question in issue is then pending before such court for decision. To hold otherwise might preclude parties so interested from an opportunity to have their rights determined in the manner prescribed by this section, unless the adverse party took action in the first instance, and would delay the settlement of the estate. Again, the court of insolvency could not determine the question raised by the petition of the assignees to have the relator Albert Sowles adjudged to be in contempt of court without determining the rights and interests of the relators in the real estate in question in that proceeding. If it was found that it belonged to the relators, or either of them, and not to the assignees, he could not be adjudged to be in contempt by reason of having made the alleged conveyance. Hence a question involving the dispute and disagreement in regard to that property between the relators and the assignees was in fact pending before that court for decision at the time the relators petitioned for the appointment of commissioners.

It is contended that the relators' application for the appointment of commissioners does not contain a sufficient allegation in respect to what the questions, disputes, and disagreements were, and that it contains no allegation that either of the relators was a creditor of the insolvent estate, or an assignee of such estate. To entitle the relators to make such application, it is not necessary that they should be either creditors or assignees of the insolvent estate. It is sufficient that they are persons interested therein in respect to the matters embraced in V. S. § 2143. In the court of insolvency the certainty and precision of the common law is not required in matters of pleading. It is sufficient if the petition or application fairly apprises the court as to the matter upon which an adjudication is sought. The allegations of the relators' application were sufficient in this respect. It is the duty of the court, when such application is made, to make such an investigation as will enable it to briefly state the matter in difference submitted in the commission issued to the commissioners. From the records and evidence submitted, it is clearly apparent that the judge would have had no difficulty in so doing in this case.

When a petition for the appointment of commissioners is made by an assignee or a creditor who has proved his claim, or other person interested, the judge has no discretion in respect to making such appointment. The petitioner is entitled to have the same made as a matter of right. The statute is mandatory. On the petition of the relators, the petitionee should have appointed commissioners in ac

cordance with the prayer of their petition. The relators must therefore prevail in this proceeding. It is ordered that a writ of mandamus issue, commanding the petitionee forthwith to appoint three disinterested persons to act as commissioners to hear and determine all the matters in dispute between the assignees of the insolvent estate of Albert Sowles and the relators, and each of them, in respect to the real estate and all other property, debts, and claims involved in the settlement of said insolvent estate, and to report to the court of insolvency their findings in respect thereto. It is further adjudged that the relators recover their costs of the petitionee.

UFFORD v. WINCHESTER. (Supreme Court of Vermont. Orleans. Aug. 5, 1897.)

SALES-TITLE-BONA FIDE PURCHASERS-PAYMENT OF PRICE.

1. Where plaintiff's grantee, having authority to dispose of a certain horse "in any way he sees fit, and at any price he sees fit," but being required to give plaintiff the proceeds thereof, transferred it fraudulently, by a sham sale, without consideration, to defendant's grantor, defendant, who purchased for value, but with knowledge of plaintiff's rights, acquired no title thereto as against plaintiff.

2. But, where such sale by plaintiff's grantee to defendant's grantor was bona fide, defendant was not bound to show, in an action against him for the conversion of such property, that the proceeds thereof were paid to plaintiff.

Exceptions from Orleans county court; Taft, Judge.

Trover by C. J. Ufford against Charles Winchester for the conversion of personal property. Plea, the general issue. To a judgment on a verdict for plaintiff, defendant excepts. Reversed.

W. W. Miles, for plaintiff. N. A. Norton and E. A. Cook, for defendant.

THOMPSON, J. January 9, 1892, the plaintiff sold to one Burton D. Piper, the horse in question, with other property, by a conditional sale, reserving a lien thereon to secure the payment of the purchase price. The lien was duly recorded, and no question was made as to its validity. November 14, 1894, the plaintiff gave said Piper consent in writing to sell this horse, which consent was as follows: "I hereby give B.D. Piper leave to dispose of the Phillips horse, on which I have a lien on, in any way he sees fit, and at any price he sees fit, and give me the proceeds, be it more or less." The evidence of the defendant tended to prove that under this license Burton D. Piper sold the horse to his brother, Alton J. Piper, and that subsequent to such sale the defendant, knowing the contents of the license to sell, bought the horse of Alton J. Piper for $50, giving his note therefor, secured by a lien on the horse. The evidence of the plaintiff tended to prove that the alleged sale to Alton J. Piper was a sham sale, without consideration, for the purpose

of removing plaintiff's lien, and that within two weeks of the alleged purchase by the defendant the plaintiff demanded of him the amount due on his note given for the horse, and notified him not to pay the note to Piper. The defendant claimed title to the horse by virtue of his purchase thereof from Alton J. Piper.

1. The defendant excepted to the charge of the court below to the effect that, if the alleged sale to Alton J. Piper was a sham sale, it was no defense to this suit, and the plaintiff was entitled to recover. Was this instruction correct? If it was a sham sale, a sham trade, in law it was no trade, no sale, and no title to the horse passed to Alton J. Piper by virtue thereof. Under the license from the plaintiff to sell, he could only obtain title to the horse by an actual purchase. If he took him without such purchase, he held him subject to the lien of the plaintiff, and the defendant, as his vendee, would hold subject to such lien. If Alton J. Piper induced the defendant to purchase the horse by making fraudulent representations in respect to his title thereto, the defendant has his remedy against him for such fraud, but such fraud does not affect the right of the plaintiff to the horse. The defendant standing upon and defending under the title of Alton J. Piper, the instruction to the jury on this subject was correct. Thrall v. Lathrop, 30 Vt. 307; Church's Adm'r v. McLeod, 58 Vt. 541, 3 Atl. 490.

2. The court below instructed the jury that the defendant, knowing the terms of the consent to the sale, could not defend in this action without showing that the pay for the horse, when sold by Burton D. Piper, was actually paid to the plaintiff; that the burden was on him to show this. To this the defendant excepted. In support of this ruling the plaintiff relies on White v. Langdon, 30 Vt. 599. In that case the license was "to trade off the horse, provided the pay or avails were paid to him, the plaintiff," and consequently only conferred authority to sell, but not to receive the pay for White. The pay was to come directly from the purchaser to him. In the case at bar the authority to sell and receive the pay is unlimited. This is the only fair, reasonable construction that can be given to the writing evidencing the license to sell. Burton D. Piper having unlimited authority to sell the horse and receive the pay therefor, the defendant was not bound to show that the pay for the horse was actually paid to the plaintiff, if there was in fact a bona fide sale of it to Alton J. Piper. Hence this instruction was erroneous. The verdict being general, it does not appear whether the jury found for the plaintiff because the alleged sale to Alton J. Piper was a sham sale, or because the defendant failed to show that the plaintiff received the pay for the horse. For aught that appears, the defendant may have been injured by this instruction, and consequently the judgment must be reversed. Wilson v. Blake, 53 Vt. 305. Judgment reversed and cause remanded.