Lambert Hoisting Engine Co. v. Carmody

Baldwin, J. By General Statutes, §§ 4864, 4865, and Public Acts of 1905, p. 324, Chap. 113, all contracts for the conditional sale of personal property, other than household furniture, musical instruments, phonographs, and phonograph supplies, bicycles, or property exempt from attachment and execution, “ shall be in writing, describing the property and all conditions of said sale, and shall be acknowledged before some competent authority and recorded within a reasonable time in the town clerk’s office in the town where the vendee resides;” and all conditional sales of personal property not made in conformity to these provisions “shall be held to be absolute sales, except as between the vendor and vendee or their personal representatives, and all such property shall be liable to be taken by attachment and execution for the debts of the vendee, in the same manner as any other property not exempted by law.” There is nothing in the facts specially found which militates against the conclusion of the Superior Court that the contracts on which the defendants rely in support of their attachments were contracts of bailment, and not contracts for a sale. *424 While the dress in which the parties to a conditional sale may clothe their agreement is not of controlling importance in determining the rights of creditors under our statutes, the insertion in a contract of bailment or lease of a provision giving an option of purchase at a fixed price, and making, in case of its exercise, payments previously made in the form of rent applicable to the purchase price, does not, as matter of law, turn the bailee or lessee into a conditional vendee. His character and position depend on the real intent and purpose of the contract. The negotiations leading up to the contracts out of which this litigation has arisen may properly be considered in ^determining their intent and purpose, as between the parties to these actions. Bartholomew v. Muzzy, 61 Conn. 387, 392, 23 Atl. 604. The preliminary negotiations between the Lambert Company and the McGovern Company, in respect to each of the cableways, began with a request for a lease, and the naming by the former of a rent considerably higher than that finally inserted in the proposal. The indefiniteness of the term for which the cableways were turned over to the Lambert Company; the fact that no rent was ever paid; and all the other circumstances of each case, were to be and were considered by the trial judge in determining whether the original requests were mere pretences, to give a false look to the arrangement to be made. What it really was remained a question of fact, and is conclusively settled as such by the finding of the Superior Court. Harris v. Coe, 71 Conn. 157, 162, 41 Atl. 552; Romeo v. Martucci, 72 Conn. 504, 509, 77 Amer. St. Rep. 327, 45 Atl. 1, 99. The defendants are right in their contention that the contract imposed on the Lambert Company a duty to sell at the price named, should the McGovern Company conclude, within the specified period of four months, to purchase. But the .option to buy, thus created, might well be a mere incident of a bailment for hire. The only duty which the McGovern Company assumed, aside from the proper care of the cableway, was to pay a monthly rent in advance for *425 not less than four months, and eventually to return it to New Jersey, if it should not be purchased. These considerations dispose of all the reasons of appeal which merit discussion, and make it unnecessary to inquire whether, if there had been conditional sales of the cable-ways, our statute would have called for the record of the papers either in New Jersey, where the McGovern Company had its corporate seat, or in Waterbury, where it was working under its contract. There is no error in either case. In this opinion the other judges concurred.