Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1896-09-11
w1NDHAM COUNTY COURT.
The ShermRn-Estey Case is still OI
Trial.

The September term of the county
court convened at Newfane Tuesday, the
8th inst. Presentation. Henry r. Start,
presiding judge, Hon. Lewis S. Walker and
Hon. Edward Titus, assistant judges.
On the calling of the docket it was found
that 35 of the 40 cases originally set for
trial by jury still remained. The calling
of the docket consumed the session of the
forenoon, ,and large share of the afternoon
was taken up in hearing motions and ar
guments thereon in several of the cases.
During the afternoon session jury was
also empanelled in the case of
S. II. Sherman rs. ESieB Orgda Co.
This is an action of trover for about 200
600 feet of sawed lumber and from 900 TO
800 cords of wood in Chesterfield, y. H.,
which the plaintiff claimed was his Prop
erty and had been converted by the de-
fendant.
The evidence on the part of the p.aiutih
tended to show that few days before The
14th of March, 1892, f. II. Waite Jf Brat
tleboro, applied to him 10, a loan OF $500
and proposed to secure him by coattel
mortgage on the lumber ard wood - -ues-
tion. That plaintiff declined TO furnish
the money; and thereupon Waite informed
him that he could get the money Of S. y.
Herrick, provided that he, the plaintiff,
would become personally responsible for
its payment. That plaintiff saw Mr.. Her
rick and he agreed to let them have the
money on four months time, provided that
plaintiff and Waite would give hlil sher
joint and several note, and he, the plain
tiff, be personality responsible that it was
paid when due. March IA, the plaintiff
and Waite, partly with the view Of insur-
ing the property and also to examine it as
to its quantity and value, went to Chester
field and looked the property over. That
1t was agreed between the plaintiff and
Waite that if plaintiff signed the Herrick
note and became responsible for its pay
ment, Waite would mortgage the property
to him to secure him for assuring such La
bility. That in the afternoon they u.et at
plaintiffs office where mortgage of the
lumber and wood was written and exc, nted
by the parties. Also two notes were writ
ten, one, joint and several note for 3250O.
payable in four months to S. y. Herrck,
and was signed by F. NJ. Waite and bv the
plaintiff as surety" also another of same
amount and date, payable TO S. II. Sher-
man in four months from date.
The condition in the mortgage described
the latter note, for the payment OF which
affidavit to the mortgage described It as a
just debt actually due from the moitgagor
to the mortgage. The latter note was not
signed by Waite at that time, as he seemed
to be in a great hurry to take the first
mentioned note to Herrick and get his
money. That plaintiff requested Waite
several times to call and sign the note, but
that he neglected to do so, and finally the
note and mortgage got pigeon-holed in his
office and forgotten until late in November,
1892, when learning that Waite was dis
posing of the lumber and wood to the Es-
tey Organ company and other parties, he
hunted up the mortgage and note and pro-
cured Waite's signature TO the latter.
The same day he sent the mortgage to
the county registry in Keene, y. H., and
had it recorded. Finding that the record
there was not in compliance with tie law,
on the 18th of December he sent Il 10 the
town clerks office in Chesterfield and had
it recorded. On Dec. Is plaintiff notified
Waite that unless said note Tas paid he
should sell said properly the 18th of De-
cember on foreclosure proceedings. That
Dec. IL the property was duly advertised
to be sold the 10Th by Warren II. Butler, a
deputy sheriff of Cheshire county. That
on Dec. 10 Hon. Z. w. Stoddard appeared
at Chesterfield and as the agent and at
torney of the defendant forbid the saie,
claiming the same to be the property of the
defendant by virtue of hill of sale from
Waite, executed in July, 1892.
The auction sale was adjourned until
the 26th, when the property was sold on
the mortgage to the l,laintiff for $2550
That plaintiff got permission of the own
er of the land where 4 was, for it to re-
main there until it could be removed.
That the defendants continued to procure
its removal from time to time until they
had taken away the whole of 1t. That he
made demand on defendants for same. or
for payment thereof prior to bringing suit.
That the property covered by his mortgage
was worth some $4,000 OF $1,000. That he
had forgotten about the note to Herrick,
and that his attention was not called to it
until the summer of 1891, when Herrick
spoke to him about it, and he took up the
note, giving his own therefor, secured by a
mortgage on real estate. The PLAINTIFF S
evidence further tended to show that the
defendants had notice of the existence of
his mortgage before they secured bill of
sale from Waite in July, 1892.
The evidence on the part of the defend
ant tended to show that a portion of the
wood and lumber claimed by the plaintiff
as covered by his mortgage from Waite was
cut and taken from timber lots in Chester
field, of which they were the absolute
owners and held conveyance thereof, and
was cut by Waite for them under a con-
tract with him. That Waite had become
largely indebted to defendant, so that July
/, 1892, he was owing defendant exceeding
S12, 700. That about July 3, 1892, Waite
applied to the company for some money,
and to secure themselves they took from
him bill of sale of wood and lumber in
Chesterfield, Dummerston and Marlboro
amounting in round numbers to $12, 1000
That they had never heard of the existence
of the Waite mortgage to Sherman at that
time, nor until the company received let
ter from plaintiff dated Nov. 25, 1892, in
which he claimed to hold a mortgage
thereon to secure $500, which he subse-
quently wrote the defendant was for money
he personally loaned Waite March IA, 1892
The defendant called on plaintiff for a
schedule of liabilities of Waite to him
which he furnished them, Dec 10, sched
uling the S250O, as a personal loan of mon
ey to Waite, secured by mortgage on thu
wood and lumber in question. THAI
learning that plaintiff had commenced pro
ceedings to foreclose and sell said proper
ty, the defendant caused large placards tC
be placed thereon, notifying all person.
that the wood and lumber was the prop
erty of the Estey Organ Co., and also for
bid the plaintiff and his sheriff from sell
ing the same. That subsequently the,