$1.25. This order is not subject to countermand in any respect, except by mutual agreement, or as hereafter provided. All stone delivered prior to April 1st, 1889, to be in proportionate sizes, and if any part of stone is not delivered by that time this order is subject to cancellation by the Ryegate Granite Works only for such balance. Settlement for all stone delivered shall be made by two-months note for half the amount, and three-months note for balance; interest reckoned on all bills of stock thirty days overdue. Ryegate Granite Works, by D. W. Learned, Prest. "Accepted as above. Woodbury Granite Co., by Alfred E. Watson, Clerk and Treasurer." The Ryegate Granite Works was not willing to accept the proposition exactly as stated in this contract, and made certain alterations, returning the contract to Alfred E. Watson for his approval as altered. Thereupon a long correspondence ensued in reference to the matter, and it did not clearly appear from this correspondence whether any definite conclusion was arrived at or not. The contract was executed by both parties, as appears from the above copy, and the plaintiff proceeded to get out and deliver the stock from time to time, but there seems never to have been a definite understanding in reference to certain matters embraced in the contract; and finally, on April 1, 1889, the Ryegate Granite Works notified Alfred E. Watson that they need not fill any of the order not already filled, and on April 19, 1889, sent to him a statement of account, showing due from it to the Woodbury Company, for stock delivered under the contract, $2,688. In payment of this, it remitted two notes dated April 1, 1889; one for $1,344, payable two months from date, and another, for a like amount, payable three months from date. April 30, 1889, Mr. Watson acknowledged the receipt of the statement of account and these notes, saying that he had just returned home from an absence in the south and west; that he would go over their account shortly, and advise them of the result. Abcut the middle of May following, the Ryegate Granite Works went into in solvency. Early in June, Alfred E. Watson saw his brother, Charles A. Watson, at Montpelier, and then learned from him, for the first time, that the sale had been made to the three individuals, and not to the Ryegate Granite Works, and that the notes should have been given by them. Thereupon, he immediately telegraphed to Gibson, Learned, and Mulliken to meet him at Wells River. Mulliken and Learned did meet him there, and Mr. Watson then delivered back to Mr. Mulliken the notes, and insisted that he should look to them personally for payment of the same. At the same time, or about the same time, he. wrote to Mr. Gibson, stating that he had left the notes with Mulliken, and his reasons for so doing. The plain tiff's claimed that there was a perfected sale of this stock to the defendants at the time of the conversation at the quarry, about December 10th, and that the stock was furnished in pursuance of this contract, by the request of the defendants, to the Ryegate Granite Works, upon the sole credit of the defendants; that what was subsequently done by Alfred E. Watson was done in ignorance of the arrangement made at Woodbury, and was really the carrying out of that contract for the delivery of this stock to the Ryegate Granite Works. It was conceded that the stock was purchased for, and was to be delivered to, that company; the only question being whether it was sold to the defendants upon their credit, or to the Ryegate Granite Works upon its credit. The defendants claimed that the talk at Woodbury in the early part of December was merely a negotiation looking to the purchase of this stock, and that the contract subsequently made between Alfred E. Watson and the Ryegate Granite Works was the contract for this sale; that the sale therefore to the Ryegate Granite Works; and that the defendants were not liable in respect of the payment of the purchase price. At the close of the testimony the defend ants moved the court to direct a verdict in their favor, for that the testimony in the case did not tend to show any contract between the plaintiff and defendants, but only a contract between the plaintiff and the Ryegate Granite Works. The court overruled the motion, and the defendants excepted. The defendants, among other things, requested the court to instruct the jury as follows: "If the defendants made a binding contract upon themselves in December with respect to the pay for the granite delivered, and the Woodbury Granite Company subsequently made another contract, with which the Ryegate Granite Works agreed to pay for the same granite by its notes, and the notes of the Ryegate Granite Works were given to the plaintiff in accordance with the terms of the last agreement, the plaintiff cannot recover." The court declined to so instruct the jury, and did instruct them that if the original sale was made to the defendants, and the credit given to them, the defendants would not be released by any subsequent contract made by the plaintiff with the Ryegate Granite Works concerning the same granite, unless it was mutually understood that such subsequent contract should release the defendants. To the refusal of the court to charge as requested, and to the charge as given above, the defendants excepted. The defendants claimed that the letter from Charles A. Watson to Alfred E. Watson, of December 20th, gave Alfred authority to make the contract which he subsequently did make with the RyegateGranite Works for the sale of this granite, and further claimed that the letter heads written contract of date December 24th. The plaintiff's evidence tended to show that said negotiations took place, and said letters of the plaintiff, by its clerk and agent, Alfred E. Watson, were written by him, in ig norance of the existence of the contract declared upon. The defendants claimed, and their testimony tended to prove, that said negotiations and correspondence occurred with full knowledge on the part of said Alfred E. Watson of all that happened at Woodbury, when and where plaintiff claimed a contract of sale to the defendants individually was made. The plaintiff's evidence tended to show that Charles A. undertook to, and supposed he did, inform Alfred E. of the making of the alleged oral contract, but that the latter did not understand that a contract was claimed to have been made by his two associate directors in December. upon the paper upon which the correspond-gotiation which resulted in the making of the ence was conducted in reference to this contract between the plaintiff and the Ryegate Granite Works held Alfred E. Watson out to the Ryegate Granite Works as having such authority. The plaintiff denied that Alfred E. Watson had authority to make the contract, and he himself testified that he did not understand that he had. Upon this branch of the case the court instructed the jury that they were to consider whether this letter gave Alfred E. such authority, and were also to consider how far the plaintiff, by the use of its letter heads, held Alfred E. out to the world as having such authority. To the submission of the effect of these written instruments to the jury the defendants excepted. The statements upon the letter heads, bearing upon this point, were as follows: "All general correspondence with the company should be addressed to the clerk and treasurer." "Alfred E. Watson, Clerk and Treasurer; P. O., Hartford, Vt." Hunton & Stickney and J. P. Lamson, for plaintiff. Dunnett & Nelson and Smith & Sloan, for defendants. TYLER, J. It appeared that on December 10, 1888, Charles A. Watson, Lewis W. Voodry, and Alfred E. Watson were the only stockholders in the plaintiff company; that they constituted its board of directors; that Charles A. was president; Lewis W., vice president and superintendent; and Alfred E., clerk and treasurer. The plaintiff claimed, and its evidence tended to show, that it sold the granite described in its specification on December 10, 1888, to the defendants, individually, by oral agreement, and, by their directions, delivered it to the Ryegate Granite Works. The defendants claimed, and their evidence tended to show, that the sale and delivery were to the Ryegate Granite Works, a company of which defendant Mulliken was a director, and defendant Gibson was superintendent; that negotiations for a purchase were begun at Woodbury December 10, 1888, with the plaintiff, by D. W. Learned, as president, and the defendants, as directors, of the Ryegate Granite Works; that the negotiations were carried on by correspondence between the latter company and A. E. Watson, as the plaintiff's clerk and treasurer, acting in its behalf; that the terms of the contract were reduced to writing by Mulliken, and that a formal contract in duplicate was executed by the proper officers of both companies as of December 24, 1888 (Exhibits 3 and 4); and that the plaintiff subsequently accepted the notes of the Ryegate Granite Works in payment. It was a material question whether the granite was sold and delivered under a verbal contract made December 10, 188S, by and between the plaintiff and the defendants, as the plaintiff's evidence tended to show, or whether the interview at Woodbury was a mere ne The defendants' ninth request was as follows: "If the defendants made a binding contract upon themselves in December with respect to the pay for the granite delivered, and the Woodbury Granite Company subsequently made another contract, by which the Ryegate Granite Works agreed to pay for the same granite by its notes, and the notes of the Ryegate Granite Works were given to the plaintiff in accordance with the terms of the last agreement, the plaintiff cannot re We think this request contained a sound proposition of law. The court, in its charge, seems to have proceeded upon the ground that a subsequent sale of the same granite to the Ryegate Granite Works would not have vacated the sale to the defendants, if such sale was made, unless there was an agreement between the parties that the defendants should be released. But if the plaintiff sold the granite to the defendants, as it claims, and subsequently sold the same stock to the Ryegate Granite Company, it was then beyond its power to perform its contract with the defendants, and it would be estopped from claiming the sale and delivery to the defendants. There was error in not substantially complying with this request. There was no ambiguity in the terms of the letter of December 20, 1888, from Charles A. to Alfred E. Watson, and there was no occasion to resort to extrinsic evidence to aid in its construction. By its terms it conferred authority upon Alfred E. to make the contract. It should have been so construed by the court, and not have been submitted to the jury for construction. We also think there was error in submitting to the jury the question whether the letter heads gave the latter real or apparent authority to contract in behalf of the plaintiff. The authority was in writing. There was no controversy as to the terms of the authority. The court should have construed the headings upon the letters, as matter of law. We think it clear that they conferred upon Alfred E. apparent, if not actual, authority to make the contract. In The court, in its charge, seemed to regard Alfred E. as one party to the contract, and Charles A. and Voodry as other parties. fact, the plaintiff was one of the parties to be bound by the contract, and it was chargeable with all the knowledge that was possessed by any one of its three directors and agents. Therefore, it was error for the court to hold that the plaintiff would not be bound by what Alfred E. did, provided he acted through mistake or ignorance as to what his associate directors had done in making the contract. The plaintiff labored under no misapprehension as to the facts, for it was chargeable with all the knowledge that Charles A. and Voodry, its directors and agents, possessed. It appeared by the plaintiff's evidence that when the parties met at Woodbury, and looked over the granite, they had before them a bill of the stock which the defendants wanted. The plaintiff claims that the pieces of granite were then and there agreed upon, and that the prices were settled. The testimony, which is referred to, does not show a completed contract. The sizes and prices seem to have been settled by subsequent correspondence between Alfred E. Watson, on the one part, and the Ryegate Granite Works, on the other. It is true that the parties might have agreed to leave these matters open for future adjustment, or the defendants might have taken, the stock for what it was reasonably worth, leaving the prices to be adjusted, but such was not the case disclosed by the evidence referred to. We find no perfected contract until the one which the defendants claim is evidenced by Exhibits 3 and 4. Previous to that time, upon the plaintiff's own evidence, there were only negotiations and correspondence, which, the defendants claim, resulted in the written contract. Judgment reversed and cause remanded. ROWELL, J., being engaged in county court, did not sit. WHITNEY v. ADAMS.. (Supreme Court of Vermont. Lamoille. July 16, 1894.) WHAT CONSTITUTES MORTGAGE - FORECLOSURETRESPASS-DAMAGES. 1. A mortgagor, in possession after redemption expired, purchased the premises from the grantee of the mortgagee for $1,180, payment to be made in yearly installments, and the title to each year's crops to remain in the mortgagee until that year's installment was paid. Under this contract, defendant paid $550. The mortgagee conveyed the premises to the plaintiff, the deed requiring the carrying out of the above contract with the defendant. Plaintiff, in defendant's absence, removed his furniture, installed another tenant, seized and sold the crops, and cut and drew away timber valued standing at $407.37, at a time when defendant was in de fault but $150. Held, that the above contract was a common-law mortgage of the crops, and could not be foreclosed separately from the mortgage on the land. 2. The lien on the crops did not constitute a chattel mortgage; R. L. §§ 1966, 1967. requir ing chattel mortgages to be recorded, or possession changed. 3. The plaintiff's willfully despoiling the premises, to prevent the defendant from raising the money necessary to redeem, amounts to tres pass. 4. The measure of damages for such cutting of timber is its value when cut and hauled to market. 5. The measure of damages for such wrongful sale of crops is their reasonable value at the time of sale, not what they brought at the sale. Start, J., dissenting. Appeal in chancery, Lamoille county; Rowell, Chancellor. Action to foreclose equity of redemption by F. C. Whitney, mortgagee, against C. A. Adams, mortgagor. Appeal from decree ordering plaintiff to account. Affirmed. The chancellor decreed: That the master's report be accepted and confirmed. That the orator account to the defendant for the gross value of the timber, being $816.20; for loss occasioned by cutting stumps too high, $12; for personal property sold at auction, $162.50; and for rent of premises to date, $21.33,-making in all the sum of $1,012.03. That there is due the orator on said mortgage the sum of $690.30, and that enough of said $1,012.03 be applied thereon to pay and extinguish the same, leaving nothing due on the mortgage. That the defendant may have leave to file a cross bill for the recovery of the surplus. the surplus. That if no cross bill is filed the original bill be dismissed. And that in any event, "in view of the unnecessary and offensive conduct of the orator," the defendant recover his costs. The orator appeals. The title of the defendant was under a land contract, but it was conceded upon the trial before the master that the rights of the parties were those of mortgagor and mortgagee. The defendant had resided continuously upon the premises in question for more than 40 years. One Ober formerly held a mortgage upon the same, which he foreclosed at the April term, 1888, the defendant obtaining the usual year for redemption. This decree was for the sum of $1,631.98 and became absolute April 30, 1889. The defendant continued in the possession of the premises after the expiration of the day of redemption. May 6, 1889, Ober sold the premises to one Jackson, and conveyed them by warranty deed of that date. Jackson paid Ober for the same $1,150, and on the following day (May 7th) sold the premises to the defendant for $1,180. Nothing was paid at the time of the sale to the defendant, but the contract of purchase recited that $300 was to be paid May 1, 1890, and $200 on May 1st of each year following, until the principal, with annual interest, was fully paid. It was furthermore provided that the defendant should not cut or carry off any timber growing upor said premises without accounting to Jackson for its value, and that all the crops raised upon said premises should be and remain the property of Jackson until the payment for the year was fully made. Under this agreement the defendant made the first payment of $300, and the second payment of $200, and a payment upon the second $200, which fell due May 1, 1892. The master reported that on November 1, 1892, there was due from the defendant, under said land contract, the sum of $159.87. The last payment by the defendant was made July 7, 1892. August 18, 1892, Jackson conveyed the premises to the orator by warranty deed, containing a condition that the orator should carry out the terms of said contract with the defendant. November 1, 1892, the orator brought this petition, praying that the equity of redemption of the defendant in the premises might be foreclosed, and the petition was served on the defendant November 24, 1892. November 28th, following, the orator went to the premises, and, finding the defendant absent therefrom, took possession, and put out nearly all the furniture and household goods belonging to the defendant, leaving them in the dooryard. He at that time put one Wescom into possession, as his tenant. At the time of taking possession the orator also took possession of a quantity of hay in the barn, and a quantity of corn, being a part of the crops grown on the place that year. Subsequently, he caused this property to be sold by a deputy sheriff, in the same manner as though it were mortgaged to him by chattel mortgage. This sale was on the 9th day of January, 1893, and the entire amount received for the property was $38.10. The defendant claimed that this sale was irregular and void, and that the orator should account to him, not for the amount actually received, but for the value of the property. The master found that the actual value of the property November 28, 1892, was $162.50. Soon after the orator went into possession of the premises, he began cutting off the timber growing upon the same, and proceeded to cut off, and draw to the village of Hyde Park, what timber was growing upon the premises. The master found that the value of this timber, upon the stump, was $407.37. He further found that the expense of cutting and drawing the timber to Hyde Park was $408.83, so that the entire value of the timber at Hyde Park, in the log, was $816.20. It appeared that the orator intended to manufacture this timber into lumber himself, but whether he had or had not done so at the date of the hearing did not clearly appear. Neither did it clearly appear what of the timber was cut before, and what after, the sale of the personal property, on January 9, 1893. At the time the orator took possession of the premises, he found the house locked, and made an entry without breaking the lock. He put the goods of the defendant v.30A.no.2-3 out of doors, and left them there until they were removed some days afterwards by the defendant. He also turned the live stock of the defendant out of the barn. The defendant was absent for but a single day, and when he returned the orator refused him admission to the premises, and, when he continued to remain in that vicinity, caused his arrest some two or three days afterwards. The tenant who was put into possession by the orator was unfriendly to the defendant, refused to allow him to enter into the house, except for a short period, upon one occasion, and, as often as he put his stock into the barn, turned it out, until the defendant finally drove it away. The master found that, in cutting the timber upon the premises, the orator cut the trees higher than was usual or necessary, and that the defendant was thereby damaged to the amount of $12. He also found that the fair rental value of the premises up to May 7, 1893, was $21.33. P. K. Gleed and B. A. Hunt, for orator. E. B. Sawyer and R. W. Hurlburt, for defendant. ROSS, C. J. This is a petition to foreclose, in legal effect, a mortgage. The parties agree that they stand, in regard to the premises, in the relation of mortgagor and mortgagee. This admits that the defendant has an equity in all the property embraced in the contract sought to be foreclosed. The orator cannot rely upon any other rights than those of mortgagor, however absolute his paper title to the property. Davis v. Hemenway, 27 Vt. 589. The defendant had been in possession of the premises many years. He gave a mortgage on them, which was foreclosed and became absolute April 30, 1889. H. A. Jackson bought out the orator in the foreclosure proceedings, and on the same day bargained them to the defendant, upon his agreeing to pay $1,180 therefor. This sum was to be paid on time, extending over several years. It is apparent that Jackson held the title to the premises as security for the payment of that sum. The defendant had remained in possession. By the contract he was still to remain in possession, carry on the premises without suffering or committing waste, and, if he cut any lumber, pay Jackson an agreed stumpage. Jackson also thereby retained a lien on all crops grown each year, until the payment for that year was fully made. The defendant paid to Jackson $550 before November, 1892. He was then behind, in the payment of that year, $150, and some interest. The orator purchased Jackson's interest in the premises, and took a deed thereof, agreeing to carry out Jackson's contract with the defendant. This was August 18, 1892. November 1, 1892, he brought this petition, which was served on the defendant November 24, 1892. Soon after the orator went to the premises, and found the house locked, and the defendant | bill, as originally brought, to foreclose the detemporarily absent. He effected an entrance, removed all of the defendant's things, including his live stock, put in a tenant, forbade the defendant to enter, and caused his arrest for entering. He took possession of the crops grown that year, which, at a fair valuation, were worth more than enough to pay all that was then due under the contract. The premises were ample security for all that was to become due under the contract. There was a timber lot on the premises. The orator soon entered upon that, and stripped it of everything that was valuable. Waiting 30 days after taking possession, the orator placed the land contract in the hands of a deputy sheriff, who proceeded to sell the crops grown on the premises, under the provisions of the statute for the foreclosure of a chattel mortgage. The first question arising is whether this sale was authorized by law. The land contract in which the lien was reserved was not a chattel mortgage. It was not executed as required for a valid chattel mortgage. R. L. §§ 1966, 1967. If in other respects duly executed,-which we do not consider, nor determine, it was not sworn to by the parties to it. The method of foreclosure pursued by the orator was a part of the act authorizing chattel mortgages, and applicable only to such mortgages as are executed in accordance with its provisions. Longey v. Leach, 57 Vt. 377; Howard v. Witters, 60 Vt. 578, 15 Atl. 303; Stafford v. Adair, 57 Vt. 63; Calkins v. Clement, 54 Vt. 635. Although the land contract does not run to Jackson and his assigns, yet the title to the premises was vested in him. Hence, the title to the emblements, or annual crops grown thereon, vested in him, except so far as they were released by the contract. By that the title to the yearly grown crops between the parties to that contract was held by Jackson as security until the payment of that year was made. Paris v. Vail, 18 Vt. 277; Smith v. Atkins, Id. 461; Briggs v. Oaks, 26 Vt. 138; Briggs v. Bennett, Id. 146; Gray v. Stevens, 28 Vt. 1; Edson v. Colburn, Id. 631; Leland v. Sprague, Id. 746; Baxter v. Bush, 29 Vt. 465; Bellows v. Wells, 36 Vt. 599; Cooper v. Cole, 38 Vt. 191. But the defendant, in legal effect, being a mortgagor in possession, the crops grown by him might possibly have been held, if attached by his creditors. creditors. Cooper v. Cole, 38 Vt. 185. The land contract, between the parties, was a commonlaw mortgage of the yearly grown crops, to secure the payment agreed to be made that year. Atwater v. Mower, 10 Vt. 75; Coty v. Barnes, 20 Vt. 78; Wood v. Dudley, 8 Vt. 430; Taggart v. Packard, 39 Vt. 628; Blodgett v. Blodgett, 48 Vt. 32. Such mortgage can be foreclosed, or a bill brought to redeem the property, in the ordinary method of foreclosing mortgages. Blodgett v. Blodgett, supra. The orator-not at law, but in equity-succeeded to the rights of Jackson under the contract. He can maintain the fendant's rights, not only in the land named in the contract, but also in the crops grown in the year 1892. The crops are the growth of the land, and held by the contract for payment of a part of the same debt for which the land is held. They are both held for the payment of the same claim. He cannot, in equity, be allowed to separate their foreclosure, thereby increasing the cost, and proceed against the land for the payment of the debt by this bill, and at the same time take an independent proceeding, under the chattel-mortgage law, to obtain payment also from the crops. Proceedings prescribed by the chattel-mortgage law are adapted and intended for mortgages executed under the provisions of that law. provisions of that law. Calkins v. Clement, 54 Vt. 635. He did not attempt to sell the crops under a common-law mortgage. Taggart v. Packard, 39 Vt. 628. By attempting to sell the crops in a method unauthorized, he converted them to his own use, and must account for them at their fair market value. The defendant's right to redeem equitably vested in the land and crops, taken as one security for the payment of that portion of the debt which was then overdue. He was under a duty to exercise this right with reference to both, and not with reference to the crops, separate from the land. Soon after bringing his bill, and therein acknowledging the equitable right of the defendant to redeem both the land and crops, the orator took possession, for condition broken, in a manner calculated, if not intended, to deprive the defendant of his right of redemption. He not only removed the defendant's household goods, but turned out his live stock, sold the hay in a manner unauthorized, but began at once to cut and remove all the timber suitable to be manufactured into lumber. A mortgagee in possession is under a duty to use the premises and property like an ordinary, prudent owner. He is bound to make necessary repairs. He cannot improve the owner out of his equity, nor can he unnecessarily, when the security is ample, encroach upon the body of the property pledged. He is bound to derive a reasonable income from the use of the property, and apply it first to keeping the interest extinguished, and the surplus to the extinguishment of the principal. He can legally no more commit waste than can the mortgagor. He is chargeable for loss incurred by his willful default. He is not entitled to receive anything for his own personal services. Pom. Eq. Jur. §§ 1215--1217, and notes; Barnett v. Nelson, 54 Iowa, 41, 6 N. W. 49; Sanders v. Wilson, 34 Vt. 318; French v. Baron, 2 Atk. 120; Moore v. Cable, 1 Johns. Ch. 385, 1 N. Y. Ch. (Lawy. Ed.) 381, and note; Benedict v. Gilman, 4 Paige, 58, 3 N. Y. Ch. (Lawy. Ed.) 55, and note; Currier v. Webster, 45 N. H. 226; 2 Jones, Mortg. §§ 1123, 1125. Section 1123 says he must account for waste committed |