sent, but that if not the cash payment should [rectors was held May 4th, when, it appearing not relate back or be deemed a payment. Appeal from Court of Common Pleas, Columbia County. Case stated by Samuel T. Shuman against the Main, Beaver & Black Creek Mutual Fire Insurance Company to determine liability on a policy of fire insurance. Judgment for defendant, and plaintiff appeals. Affirmed. Argued before BROWN, C. J., and MOSCHZISKER, FRAZER, SIMPSON, and KEPHART, JJ. C. E. Kreisher and W. H. Rhawn, both of Catawissa, for appellant. Fred Ikeler and R. S. Hemingway, both of Bloomsburg, for appellee. the check was still missing, the action of April 13th was reconsidered and the resolution agreeing to accept the check was withdrawn. This was done in accordance with the board's understanding of the minutes of April 13th. An offer was then made to explain the recorded minutes, and the sole question for our consideration is the admissibility of the evidence as to what took place at this meeting. [1, 2] We may presume, for the present, that the board had authority to accept and receive an overdue assessment after the destruction of the insured property; and that such receipt waived the forfeiture and continued the policy in force. The minutes of a corporation are prima facie evidence of the facts stated therein and of what took place, but parol evidence is always admissible to explain them where they are ambiguous or doubtful in meaning, or, if incomplete, to supplement them and to supply the omission. Hamill v. Supreme Council of Royal Arcanum, 152 Pa. 537, 543, 25 Atl. 645; Rose v. Independent Chevra Kadisho, 215 Pa. 69, 74, 64 Atl. 401; Schmitt v. Burns, Fleming & Co., 67 Pa. Super. Ct. 449, 452. KEPHART, J. The appellant brought suit on two policies of insurance covering his frame dwelling, barn, and outbuildings. The case was submitted under the Acts of April 22, 1874 (P. L. 109), and June 4, 1915 (P. L. 822). The policies were issued by a mutual fire insurance company, and, in compliance with the regulations of the company, he deposited with it a premium note, as security for assessments arising from loss by fire, or [3, 4] The resolution provided the check other cause, covered by insurance policies. mailed March 30th "be accepted." It was An assessment was levied and sent to the not definitely known that the check had been appellant on January 18, 1918, due February lost. If lost, it could not have been accepted. 23, 1918. A by-law of the company required If not lost, and it afterwards turned up, of assessments on premium notes to be paid course, it could have been accepted in acwithin 30 days after demand, otherwise the cordance with the resolution; but nothing policy issued would be null and void until is said of the time within which it must turn the assessments were paid. The appellant up, nor did the directors intend that both duly received the notice, but the company cash and the proceeds of the check be taken, was not paid the amount of the assessment. nor did the resolution convey the idea the On April 6th a fire destroyed Shuman's build-policy would be in full force with the assessings, his loss aggregating $3,830. He was ment unpaid. If the resolution is taken. present when the directors of the company literally, of course, the appellant could not met on April 13th to adjust losses, and stated recover; the check has not been seen to this he mailed a check March 30th to the secre- day. The explanatory evidence did not detary of the company, as required by his no-stroy the effect of the minutes, but was in tice; that the company invited payment in entire harmony with them. It amplified the this manner, and a policy holder should not resolution, by making it intelligible, in that be made to suffer because the check did not reach its destination. The company contended the by-law required the assessment to be paid within 30 days. This was not done, and the policies were null and void when the fire occurred; but, in view of the appellant's statement, the following resolution was adopted: "A motion was then made by Fenstermaker and Singley that the check of S. T. Shuman, which he claims he mailed the secretary on March 30, 1918, in payment of his assessment be accepted. Carried only by bare majority." the check was to be accepted, if received within a reasonable time, otherwise the effect of the by-law was not to be waived. In this view of the situation, we can well understand the admission of counsel for appellant at the argument that under these circumstances the evidence concerning the minutes was properly admitted. It was ample to sustain the finding of the court below that "The board determined and decided to receive the amount due on the assessment with the express understanding that if the check alleged to have been mailed by the plaintiff, but Thereafter, the secretary received from not received by the secretary, should turn up Schuman the amount of the January 18th as- or appear within a reasonable time, the paysessment in cash and prepared the notices of ment of the assessment should be considered as having been made on the date when the check assessment for the policy holders. Before was mailed, to wit, March 30, 1918, but that if they were sent out, on complaint that the the check did not turn up, then the payment check of March 30th had not yet been re- was to be considered as having been received (108 A.) 1918. That this understanding was made | 4. TRIAL 177-DIRECTION OF VERDICT IN known to the plaintiff, and thereupon the money ABSENCE OF ISSUE. was paid by him and received by the secretary of the board. That the check alleged to have been mailed by the plaintiff March 30, 1918, was never found, was not received by the secretary to whom, it was alleged, it was addressed, and that subsequently, on May 4, 1918, at a duly convened meeting," it was resolved not to pay the loss of the plaintiff. [5] Between February 23d and April 13th, under the by-laws, the policy was null and void; it was brought into life by the cash payment on April 13th; this payment did not relate back to March 30th.' The contention of the plaintiff that the action of the board of directors on April 13th, evidenced by the minutes, and the receipt and retention of overdue assessments, constituted an irrevocable waiver of the by-law, binding the defendant to pay the amount of the loss, cannot be sustained, under the facts as found. The receipt was no part of the minute, nor authorized by it, and was the subject of explanation. This fact, with the uncertainty of the minute and the evidence introduced, clearly negatives the idea of any binding contract of waiver. The minutes of May 4th were properly admitted in evidence under the affidavit. Some of the assignments of error are not Some of the assignments of error are not in proper form. We have considered all of them, however, and they present no reversible error. The judgment is affirmed. (93 Vt. 412) In trover for the conversion of a mare by defendant mortgagor, where the evidence tended to support the complaint, and admittedly made a prima facie case for plaintiff, the mortgagee, showing a public sale of the mare by defendant mortgagor, and defendant offered no evidence, but moved for directed verdict at the close of plaintiff's case, there was no issue of fact for the jury, and it was the duty of the court on plaintiff's motion to direct verdict for him. 5. CHATTEL MORTGAGES 129—OPERATION AS SALE SUBJECT TO REDEMPTION. Mortgage on a mare operated as an absolute sale by the mortgagor to the mortgagee, subject to the mortgagor's right to redeem according to the terms of the contract, passing the general property to the mortgagee, and vesting the whole title absolutely in him, subject to the mortgagor's right to redeem if the conditions of the mortgage were not duly performed. 6. CHATTEL MORTGAGES 159-PERMISSIVE POSSESSION BY MORTGAGOR. Possession of a mortgaged mare by the mortgagor was permissive and not a matter of right. 7. CHATTEL MORTGAGES 164-RIGHT MORTGAGOR TO SELL. OF The mortgagor of a mare had no better right to sell the animal and appropriate the proceeds of sale to his own use than he would have had to dispose of any other item of the mortgagee's property that might come into his possession. property that might come into his possession. 8. BANKRUPTCY 424-SALE BY MORTGAGOR MALICIOUS INJURY TO PERSONALTY BARRING DISCHARGE. The act of the mortgagor of a mare, holding permissive possession, in selling her at public sale and appropriating the proceeds to his own use, in the mortgagee's action for conversion MASON v. SAULT. (No. 160.) could be found to be a willful and malicious injury to the mortgagee's personal property (Supreme Court of Vermont. Orange. Oct. 7, within the meaning of the bankruptcy act, ex1919.) cepting such a liability from operation of a discharge. 1. APPEAL AND ERROR 1078(4)—WAIVER OF EXCEPTION BY FAILURE TO BRIEF. Defendant, by not briefing his exception to overruling of his motion for directed verdict, waives the exception. 2. TRIAL 176-MOTION TO DIRECT VERDICT AS WAIVER OF RIGHT OF SUBMISSION TO For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes TAYLOR, J. The action is trover for the conversion of a mare. The trial was by jury, resulting in a directed verdict for the plaintiff, and the defendant brings exceptions. The plaintiff introduced evidence tending to show that the defendant executed and delivered to him a mortgage of the mare in question to secure the payment of a promissory note of even date therewith; that the mortgage was duly recorded; that the mare was, at the time the mortgage was executed, in the defendant's possession, and so remained until some ten months later, when, without leave or knowledge of the plaintiff, the defendant sold her at public sale to a person residing at Montpelier, Vt., receiving and retaining the purchase price. It was in evidence that the plaintiff had not demanded possession of the mare of the defendant. The defendant introduced no evidence, but rested at the close of the plaintiff's evidence, and moved the court for a directed verdict on the ground that there was no evidence of a demand by the plaintiff. While the defendant's motion was pending, the plaintiff moved that a verdict be directed in his favor, whereupon the court directed the jury to return a verdict for the plaintiff. The defendturn a verdict for the plaintiff. The defendant was allowed exceptions, both to the overruling of his motion and to the granting of the plaintiff's motion. [1] The defendant waives the exception to the overruling of his motion for a directed verdict by not briefing it. Nor does he contend in his brief that the evidence did not make a case for the plaintiff. His sole claim make a case for the plaintiff. His sole claim under the latter exception is that it is for the court to direct such a verdict as in its judgment the evidence requires only when it affirmatively appears that neither party wishes to go to the jury, and that he did not waive his right thereto by moving for a di rected verdict in his favor. [2-4] The mere fact that a party moves the court to direct a verdict in his favor does not amount to a waiver of the right, if such he has, to have the case submitted to the jury. Such a motion is in the nature of a demurrer to the evidence of the adverse party, and challenges his right to go to the jury; but the moving party does not thereby concede that the case should be taken from the jury and submitted to the court on the evidence. Seaver v. Lang, 92 Vt. 503, 512, 104 Atl. 877. The province of the court on such a motion is pointed out in Bass v. Rublee, 76 Vt. 395, 400, 57 Atl. 965. It does not follow, however, that the court erred in directing a verdict for the plaintiff. In stating his claim the defendant overlooks an important prerequisite to the right to go to the jury. If there is no conflict in the evidence, nor any dispute as to the facts, there is nothing for the jury. The only questions questions of law, which can be determined only by the court. St. Johnsbury v. Thompson, 59 Vt. 300, 311, 9 Atl. 571, 59 Am. Rep. 731. The evidence tended to support the complaint and admittedly made a prima facie case for the plaintiff. The defendant offered no evidence, so there was no issue of fact to be determined by the jury, and it was the plain duty of the court on motion to direct a verdict for the plaintiff. On motion by the plaintiff at the time of rendering judgment, and solely upon consideration of the evidence introduced on the trial, the court found and certified as follows: "It is found and adjudged from the evidence in this case that the cause of action in said case arose from a willful and malicious injury done by the defendant to the personal property of the plaintiff, and that said defendant ought to be confined in close jail." to this certificate, and now contends that 826. bankruptcy "shall release a bankrupt from all licious injuries to the person or property of not appear whether or not the condition of (108 A.) tiff's property that might come into his pos- [ v. Mead, supra), and held that the conversion session permissively. It remains to consider of the stock in the circumstances disclosed whether the unauthorized sale of the mare, was sufficient to show a willful and maliin the circumstances disclosed in the evi- cious injury to property for which the plaindence, was "a willful and malicious injury" tiff in error remained liable to respond in thereto within the meaning of the Bankrupt- damages notwithstanding his discharge in cy Act. bankruptcy. This authoritative holding was forecasted by Mr. Loveland in his work on Bankruptcy wherein it is said: Prior to the pronouncement by the Supreme Court of the United States in McIntyre v. Kavanaugh, 242 U. S. 138, 37 Sup. Ct. 38, 61 L. Ed. 205, there was a conflict respecting this matter in the decisions of the inferior courts. But that case has clarified the situation and renders the holdings of other courts to the contrary of no force as precedents. That was a case in error to the Court of Appeals of New York. Plaintiff in error was a member of a firm engaged in business as brokers. The partnership received certain stock certificates owned by the defendant in error to hold as security for his indebtedness, amounting to less than onesixth of their market value. Within a few weeks, without authority and without his knowledge, they sold the stocks and appropriated the avails to their own use. Shortly thereafter both the firm and its members were adjudged bankrupts. After his discharge in bankruptcy suit was instituted against the plaintiff in error for the wrongful conversion of the stock. He relied upon such discharge in bar of the action. The trial court held that the liability was for willful and malicious injury to property, and expressly excluded from release by the provision of the Bankruptcy Act here in question. A judgment for damages was affirmed by the Appellate Division and, in turn, by the Court of Appeals. The case was argued in the Supreme Court in May, 1915, and reargued in October, 1916. In an opinion affirming the judgment below without dissent the court, speaking through Mr. Justice McReynolds, said: "To deprive another of his property forever by deliberately disposing of it without semblance of authority is certainly an injury thereto within common acceptation of the words." The court disposes of the argument that Congress did not intend the words in question to include conversion by saying: "We can find no sufficient reason for such a narrow construction. And instead of subserving the fundamental purposes of the statute, it would rather tend to bring about unfortunate if not irrational results. Why, for example, should a bankrupt who had stolen a watch escape payment of damages, but remain obligated for one maliciously broken?" The court reaffirmed the definition of a willful and malicious injury within the meaning of the exception previously given in Tinker v. Colwell, 193 U. S. 473, 24 Sup. Ct. 505, 48 L. Ed. 754 (as to which see Wellman "An ordinary liability in trover for conversion is barred by the discharge, but may not be barred when based on malice or fraud." 2 Loveland on Bk. 1365. [8] Some of the cases hold that for a conversion to be within the exception it must amount to larceny. But such is not the holding in McIntyre v. Kavanaugh. The rule fairly deducible therefrom is that the disposal of another's property without his knowledge or consent, done intentionally in disregard of what one knows to be his duty, to the other's injury, is a willful and malicious injury to property within the meaning of the Bankruptcy Act. See Covington v. Rosenbusch, 148 Ga. 459, 97 S. E. 78. It is said that the plaintiff's rights were in no way affected by the sale; that he could follow the property in the hands of third parties, either by foreclosure or by a proper action. But that his rights were invaded by the sale is too evident to admit of controversy. He was not obliged to follow the security converted by the defendant, if perbut could pursue his remedy against him for chance it happened to be within his reach, but could pursue his remedy against him for damages for the conversion, which implies the injury contemplated. See Smith v. Turner, 141 Ga. 313, 80 S. E. 993, 32 Am. Bankr. Rep. 679. Bank v. Bamforth, 90 Vt. 75, 96 Atl. 600, relied upon by the defendant, did not involve the question presented here. It was there pointed out that the exception to the operation of a discharge in bankruptcy now under consideration did not apply as the money received by the defendant for the recovery of which the plaintiff sued was neither paid nor received as the property of the plaintiff. It was held that it was only in an equitable sense that the bank had any inter est therein. [9] It may properly be noticed in passing that a conversion of property may be committed in such circumstances as to be barred by a discharge in bankruptcy. But a simple conversion and a conversion which shows design or willingness to inflict a wrong upon another, or the reckless disregard of the other's rights, are entirely different in character. Kavanaugh v. McIntyre, 128 App. Div. 722, 112 N. Y. Supp. 987. We hold that the evidence before the court was sufficient to support the finding excepted to. Judgment affirmed. (93 Vt. 398) STE. MARIE v. WELLS. (No. 158.) exceptions beyond what is presented by the exception to the charge as given, presently to be considered, which is the only other ex (Supreme Court of Vermont. Oct. 7, 1919.) ception relied upon. This exception was 1. FRAUD 64(5)—RELIANCE ON REPRESENTATIONS QUESTION FOR JURY. In an action for deceit in the sale of a farm, reliance on defendant's representations need not be proved by direct evidence, but may be inferred from the circumstances; and, where the representations are material and calculated to induce plaintiff to purchase, whether he relied thereon is a question of fact for the jury. 2. FRAUD 22(1) — PURCHASER'S RIGHT TO RELY UPON STATEMENTS BY VENDOR. Where an owner of land sold it by false representations as to the condition of the fences, buildings, and farm machinery, as to the available timber, and also represented that a spring supplying water was located on the land sold, the vendee was under no obligation, in view of the evidence, to make an examination, and was entitled to rely upon the statements made to him. UPON MISREPRESENTATIONS. taken in the following language: "We except to the submitting to the jury of any question upon the matter of fraudulent representations, because we say there is no evidence that plaintiff relied upon any of the rep resentations." The ground of this exception is general. If, therefore, there is any substantial evireliance by the plaintiff upon any one of the dence fairly and reasonably tending to show various representations here in question, the objection will not avail. In this respect the question is the same as if it had been raised upon a motion for a verdict. Schofield's Adm'x v. Metropolitan Life Ins. Co., 79 Vt. 161, 167, 64 Atl. 1107, 8 Ann. Cas. 1152; French v. Grand Trunk Ry. Co., 76 Vt. 441, 444, 58 Atl. 722. And so the question here is: Was there substantial evidence from Bass v. Rublee, 76 Vt. 395, 400, 57 3. FRAUD 58(4)—EVIDENCE OF RELIANCE which, if believed, and excluding the effect of modifying evidence, the jury could reaIn an action for deceit because of false rep-sonably infer that the plaintiff relied upon resentations in the sale of a farm to plaintiff, the defendant's representations or any of evidence that defendant misrepresented the con- them? dition of fences, the location of a spring, the condition of the farm machinery and buildings, and the amount of available timber, held sufficient in connection with the representations themselves to warrant a finding that plaintiff relied thereon in making the purchase. Atl. 965; Latremouille v. Bennington & Rutland Ry. Co., 63 Vt. 336, 344, 22 Atl. 656. Such reliance was, of course, a necessary element of plaintiff's cause of action. Weeks v. Burton, 7 Vt. 67, 70. [1] The plaintiff did not testify in terms Exceptions from Orleans County Court; that he acted in reliance upon defendant's Leighton P. Slack, Superior Judge. Action by Wilfred Ste. Marie against E. O. Wells. Verdict and judgment for plaintiff, and defendant excepts. Affirmed. Argued before WATSON, C. J., and POWERS, TAYLOR, and MILES, JJ., and MOULTON, Superior Judge. Frank D. Thompson, of Barton, for plain tiff. E. A. Cook, of Lyndonville, and W. W. Reirden, of Barton, for defendant. MOULTON, Superior Judge. This is an action in tort for deceit in the sale of a certain farm by defendant to plaintiff, with a count for the conversion of certain personal property. Trial was had by jury, with verdict and judgment for the plaintiff. The case is here on exceptions by defendant. representations in the purchase of the farm. But there is ample authority for the proposition that the fact of reliance need not be proved by direct evidence, but may be inferred from the circumstances; and where the representations complained of are material and of a nature calculated to induce the person to whom they are made to take a certain course of action with regard to the subject-matter of the representations, the question whether he relied thereon in so doing is one of fact for the jury. Nash v. Minnesota Title Ins. & Trust Co., 159 Mass. 437, 443, 34 N. E. 625; Smith v. Chadwick (1884) 9 App. Cas. 184, 196; Hughes v. Twisden (1886) 55 L. J. Ch. 481; Arnison v. Smith (1888) 41 Ch. Div. 348, 369. The rule is aptly stated by Lord Blackburn, in Smith v. Chadwick, supra, at page 196, as follows: "I think that if it is proved that the defendants, with a view to induce the plaintiff to enter into a contract, made a statement to the plaintiff as would be likely to induce a person to enter into a contract, and it is proved that the plaintiff did enter into the contract, it is a The defendant excepted to the failure of the trial court to instruct the jury in accordance with six requests to charge made by him. It appears that these requests were not submitted to plaintiff's counsel before the opening argument for defendant, as re-do so by the statement. quired by county court rule 30. But it is unnecessary to pass upon the effect of this rule, because nothing is claimed under these fair inference of fact that he was induced to * * * I quite agree that, being a fair inference of fact, it forms evidence proper to be left to a jury as proof that he was so induced." |