Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1895-03-22

II. sherman.
Our report of the opening proceedings of
the present term, printed last week, in
cuded the evidence in the case of Abbie f.
Andrews VS.. Joshua G. Stafford, guardian,
in which the jury returned verdict for
the plaintiff in the sum of SG62.74. Fol-
lowing is the report of cases since last
Thursday. tA Ia &C.. p, u4. g.-8Ln.
s. H. Sherman u.s. Estey organ Co-This was
an action of trover for a large quantity Of lumber
logs and wood, situate and being in Chesterfield,
Marlboro and Brattleboro. The plaintiffs evil
dence tended to show that March H. 1892, he
signed a note as the surety of f. NJ. Waite to S. n
Herrick for $500, payable in three months. That
to indemnify plairtin for signing said note the
said Waite executed to him a personal property
mortgage of the same date Of lumber, logs and
wood upon certain lots in Chesterfield n. H., of
the value of about $500, to secure a note for
$500 of even date wi it'll said mortgage, purporting
to have teen executed by said Waite to the plant
if II appeared that the note described in said
mortgage was not in fact executed, signed and
delivered to the plaintiff until some time in No
vember, 1892, and that 1t was not given for any
Indebtedness from Waite to him, but a colat-
eral for signing the Herrick note That said per
sonal property mortgage was recorded in the
town clerk S Office of Chesterfield, n. H.. Dec 10,
1892. That previous TO said record being made or
the note being given the defendants had caused
to be drawn away from said lots In Chesterfield
large quantity of said logs, lumber and wood.
That Dec. 10, 1892 he placed his mortgage in the
hands Of one Warren &. Butler of Chesterfield for
foreclosure. who proceeded to, and did, sell at
public auction said property, the plaintiff buying
the same at S2jjO That after said sale the de.
PENDANTS caused the same to be taken away and
converted it to its own use.
1t further appeared that the defendants, who
were large creditors of said Waite, had taken
from him in July, 1892, bill Of sale Of the same
lumber, wood and logs, of which the plaintiff had
notice before the note OF $500 was delivered to
him by said Waite and long prior to his mort
gage being recorded. IL also further appeared
that in the oath which is a part of said mortgage
Ina MIA
with Waite described the Indebtedness or note
mentioned i'm the condition thereof to be a debt
honestly and Justly due the mortgage from the
mortgagOr. and not as collateral, or that the
mortgage was given to secure him for signing
said Herrick note. 1t further appeared that the
plaintiff did not pay the HerrICk note until July,
isg3. After submitting some evidence relative TO
the lumber, wood and logs upon the lots in MARI
boro and Brattleboro, plaintiff counsel aban-
doned any right to recover for that.
The defendants counsel without submitting
any evidence on their part cOntended that the
plaintiff mortgage Of the property in Chester
field was invalid and of no legal effect to place the
title thereto in the plaintiff as against the defend
ants. The court so held and directed the Jury to
return a verdict accordingly.
Fits and Read for the plaintiff HaskinS &
Stoddard and Waterman, Martin & Hit for the
defendants.
Julius d. Estey u.s. S. H. Sherp,uu.-Action on
the case for deceit in the sale and transfer of a
note and personal property mortgage. The evil
dencc of the plaintiff tended to show that on the
10Th of September, 1872, the defendant signed
and surety thereon, for money loaned said
Waite by Miner That to indemnify and save the
said defendant from loss by reason of signing
sai1 note he took from Waite personal property
mortgage of several pairs of oxen, the property
of said Waite. That the fore part of November,
1892, Waite borrowed $40 from Miner and gave
him his note therefor signed by defendant as
surety. That of this $40 some fifty odd dollars
was paid on the $50 note and Nov. ~, 1892, the
$3.50 note was surrendered and new note for
$50, the amount then due thereon, was given in
renewal of the original mortgage note. That
thereafter. the plaintiff in the meantime having
got possession OF the property mortgaged, and
desiring to clear 1t of all membranes, applied
to the defendant, who informed him that he held
a mortgage on said property for $40 TO secure
him for signing said notes with Waite to Miner,
and that he would assign said mortgage to plant
if on payment of said S9i0to Miner Dee. ~, 1892,
the plaintiff paid Miner $40 and defendant as
signed all his right title and interest IN said mort
gage to the plaintiff and sent the same TO the
plaintiff, and at the same time Miner took the
notes to the plaintiff. That afterwards the plant
III discovered that the notes he had paid were
not described in the mortgage, but instead there
Of a note for $3.50 dated Sept. 10, 1892.
The court here held that, as II appeared that
the $500 note was given In renewal of the $3.50
described in the mortgage, the mortgage contin
ued as security for the last note although the
condition in the mortgage did not in terms pro-
vide that it should stand as a security for any
note or notes given IN renewal of said original
note, and directed the jury to return verdict for
Haskins & Stoddard, Waterman, Martin &
Hit for the plaintiff Fits and Read for de-
PENDANT.
+. j. Bailey rs s. 4. smith d. Co.-This is an
action TO recover damages tor the breach and
nontulhlment of a contract to manufacture and
deliver TO the plaintiff or his order 5000 clothes
reels, known as the Bailey clothes reel" The
plaintiff IS the patentee of said clothes reel, and
desiring to put II upon the market, entered into
a contract with defendants to manufacture for
him 5000 according to a certain standard or model
to be- thereafter made and agreed on. The con-
tract was in writing and is ated Nov. -, 1892
The evidence OF the plantilf tended 10 show
ar Il tfafs
by the defendants and agreed on. to be kept in
their factory as sample to manufacture others
by. That small number of said reels were man
ulactured by defendants out of first class oak
lumber and IRON castings we'll fitted to receive the
rods and bars OF wood, from which number the
plaintiff took samples with the knowledge of the
take orders for the same That the reel was well
received and during the period he was engaged
on the road he took and sent in orders for 1900
reels or more. That he rtprrs nted TO others
that said reels ID BE- of the quality and work
manship OF the sample from which he was selling
That after he had taken a large number of or
ders for said reels, $. a. Smith, one of the de-
! fenda nts, approached him with the proposition
| TO purchase an interest in his letters patent but
that plaintiff refused to sell to them any interest
| therein. That thereupOn said Smith Informed
him that il would be for both their interests that
defendants had an interest in the letters patent,
and that II he would not convey il TO them he
| would soon find that il was not for his interest
| to hold II himself. That at this time some 800 or
| 400 reels had been manufactured and furnished,
| but that larger number of orders had been sent
! into the factory. That up to the time Of this
| proposition TO purchase said interest the reels
had been OF good quality Of material and work
| manship and that no fault had been found with
| them. That very soon, thereafter, the defend
ants began to fill orders with reels of inferior quail
lty OF material the castings being imperfect, and
! the wood green, worm. eaten, checked, wainy and
decayed and of poor and rough finish and work
manship, so that those furnished became and
| were unstable and the market therefor rendered
! worthless, so that he had to discontinue selling
| them. That he had, relying upon the defendants
undertaking to perform their part of the contract
according TO its true intent and meaning, eX-
! pended large sums of money in advertising and
IN selling said reels on the road and had lost large
| gains and profits that would have accrued to him
| had they continued to furnish reels of good quail
! ity and workmanship.
That defendants also agreed to stencil upon
each reel the PLAINTIFF name or Bailey Clothes
| Reel, Pat. Applied for also "Bailey's Reel on
each box in which they were packed for ship.
| ment, That defendants manufactured and
| shipped reels without having said stencil marks
| thereon, but some of them bore a stencil plate
| with the name of IS. A. Smith a Co., Brattle
| borO, VT thereon instead. That plaintifs net
profit on each reel if properly manufactured and
sold was one dollar.
The evidence on the part of the defendants
| tended to show that before the contract OF Nov.
~, 1892 was made and signed, they manufactured
| for the plaintiff one hundred reels, the large
| arms thereof being of ash, the other woodwork OF
| maple, and the hubs combination of iron and
wood. That said reels were of good material aad
| workmanship and satisfactory to the plaintiff
That of these the plaintiff disposed of 25 leaving
70 still on defendants hands That after the con
tract for the 5000 was made, defendants sug
gested that as the reels were for outdoor use It
would be better to manufacture them from OAK
and that the hubs be of iron entirely, to which the
plaintiff assented. That no sample or standard
of quality and workmanship was ever agreed OF
and kept in the shop to make others from, but il
was talked and understood between them thai