The question in reference to the admission of the letters of Rood in evidence is, were the letters properly admitted in evidence, and not whether they were to be accepted as true. The first is a question of law for the Court, and the last a question of fact for the jury.
Haas and Rood were privies, Haas had Rood's title, and nothing more, and Rood's statement as to what his title was, while he was connected with the property, are evidence against Haas. (Vide 1 Greenleaf on Evidence, sec. 23; vide Greenleaf, vol. 1, sec. 189, edition of Redfield; also sec. 190 and 191, and seq. idem; Heywood Rubber Co. v. Deucklee, 30 Vt. 29; Bard v. Fitzpatrick, 4 Gray 89; Miller v. Bingham, 29 Vt. 82.) Even if the plaintiff and Rood had been partners under the contract, then Rood would have had no right to sell any sheep, unless there was an increase in which he had an interest while the contract was in existence. This was never pretended by the defendant to have been the case.
When parties are sought to be made partners, by operation of law, so far as third persons are concerned, it is material to inquire, whether their contract contemplates dealing with such third person, or whether the party sought to be charged had any interest, either direct or indirect, in the transactions upon which it is sought to charge him. The only item in which Rood and Robinson were jointly interested, so far as third persons were concerned, was in the sale of the wool, the wethers, and the increase, which was to be sold by Robinson, and half paid to Rood. (Vide Story on Part., secs. 34, 36, 38, 42, 43, 30 Cal. 97; vide Wheeler v. Farmer, July T. 1869.)
If Robinson had given Rood a bill of sale; or if a negotiable instrument had been indorsed and delivered to him, or if he had made a deed, absolute on its face tohim, then he would have been invested with apparent ownership. (Vide 13 Barb. p. 372).
JUDGES: Wallace, J., delivered the opinion of the Court, Rhodes, C. J., and Crockett, J., concurring.
OPINION
WALLACE, Judge
There was no error in admitting in evidence the letters of Rood, written by him while he was in possession of the sheep, and addressed to Robinson. Haas claimed the property by purchase of Rood; he therefore stood in privity with the latter, and these letters, or any other admissions made by Rood while in possession, going to show how he held the property, would be proper evidence against Rood himself, or any subsequent transferee of his.
There is nothing in the point that the contract of May, 1863, between Robinson and Rood, constituted them partners. It was simply an employment of Rood to take care of Robinson's sheep, upon the terms that at the end of three years, the original number of 2,000 head should be first returned to Robinson, and then the increase should be equally divided between Robinson and Rood. At the time Rood sold to Haas there was no increase whatever over the original number, but several hundred less than that number. Rood could have claimed none of these sheep as against Robinson; and we have not been pointed to any principle of law by which Haas occupies a more favorable position than Rood, his vendor, would have done.
The Court below refused to instruct the jury, at the instance of the defendant, that as Robinson had intrusted his sheep to Rood to drive to distant parts of the State in quest of feed, he thereby gave him credit, and enabled him to impose himself on Haas as the owner of the sheep, and that--Haas having purchased under these circumstances--Robinson, though he might be the true owner of the sheep, could not recover.
The maxim, nemo plus juris, etc., is generally applicable to transfers of chattels. By the general rule of the English common law, a sale of goods made would pass to the purchaser only such title as the vendor had. Sales in market overt formed an exception to this rule, but in this State there is no market overt.
The delivery of the sheep to Rood by Robinson, was a mere bailment for the benefit of both parties, and did not divest the title of the true owner.
We see no error in the record; and the judgment and order denying a new trial are affirmed.