Mack v. Story

Loomis, J. This is a complaint in trover to recover the value of four barrels of spirituous liquors which were attached by the defendant, as a deputy sheriff, on the 3d day of August, 1885, by virtue of a writ in favor of McNamara & Pratt against Joseph Corture. The controlling question upon the trial was, whether Corture or the plaintiff owned the liquors so attached, and this depended upon the question whether, upon the facts found, the sale of the liquors from the plaintiff to Corture, pursuant to which the latter obtained the possession, was upon a valid condition for the retention of the title in the plaintiff, or was absolute so far as the creditors of Corture were concerned. — 409 — The trial court held that the sale was conditional, and rendered judgment for the plaintiff. The sole question for review is, whether there was error in so holding. The finding of facts is as follows :—“On or about June 6th, 1885, the plaintiff’s agent and traveling salesman for the New England states, one Jacob Harris, also of said New York city, sold to Joseph Corture, who was at that time, and up to August 3d, 1885, proprietor of the Metropolitan Hotel in Norwich, and the keeper of a bar-room in the hotel where liquors were sold at retail to the public, the liquors described in the complaint, to be delivered in Norwich, upon the express condition that the title to the liquors should remain in the plaintiff until they were fully paid for, and upon the further understanding and express agreement that Corture might sell and dispose of the liquors as they should be called for by customers' in the course of his business as such barkeeper, and in case any of the liquors should be so sold or disposed of before full payment should be made by him of the entire bill of goods bought of the plaintiff, Corture should account for and pay for the same to the plaintiff’s agent, upon his first visit after such sales, at the price at which the liquors were billed to him; and that the plaintiff should only enforce the condition of his sale to Corture against the portion of the liquors remaining unconsumed and unsold at retail. “ It was further agreed at the time of the sale that all the liquors so sold by the plaintiff to Corture, should be paid for in three or four months, and that an acceptance should be given by Corture for the price of the goods, and that something should be paid on the acceptance to the salesman whenever he should call at Corture’s place. “ The plaintiff, upon being acquainted by the salesman with the terms and conditions of the agreement with Corture, ratified the agreement, and upon the 12th day of June, 1885, sent the goods to Corture upon the conditions stated. There was a mistake made in the kind of liquor contained in one barrel sent, and that barrel (with the exception of five gallons not here in controversy, retained by Corture with the plaintiff’s consent) was returned to the plaintiff, — 410 — and a barrel of the kind of liquor originally ordered by Corture was sent to him in exchange for it. “ It was agreed between the plaintiff and Corture that the plaintiff should draw on the latter, for the amount for which the liquors were sold, and after the above mistake was corrected, the plaintiff did draw on Corture two drafts, dated June 12th, 1885, one on three months’ time and one on four months’, each for one half the amounts agreed upon for the price of the liquors sold. “ The drafts, which were negotiable, were then accepted by Corture and delivered to the plaintiff, but have never been paid either in whole or in part, and are still held by the plaintiff, and have never been negotiated. Corture has never paid the whole or any portion of the price of the liquors to the plaintiff. “When Corture received the liquors, he placed them in his bar-room, where he kept and sold other liquors. “ On August 3d, 1885, the defendant, who was a deputy sheriff, seized the liquors described in the complaint, being a portion of the liquors sold by the plaintiff to Corture, by virtue of a lawful writ of attachment, in favor of McNamara & Pratt, wholesale liquor dealers of Norwich, and creditors of Corture, wherein he was commanded to attach the goods or estate of Corture,” and though requested to return the liquors to the plaintiff, he has always refused and still refuses to deliver them to him. “ On the 2d day of August, 1885, Corture absconded and could not be found at the time of the attachment. “ On the 4th day of August the plaintiff’s salesman called at Corture’s bar-room, to look for and take back the liquors, and found that they had been attached. From the time of the sale up to 4th day of August the salesman had not called on Corture or at his place of business. “ At the time of the attachment the liquors described in the complaint were found in the bar-room, and in each of the barrels in which they were contained had been placed a faucet, and the liquors were on draught and from each of the barrels had been drawn a portion of its contents. The — 411 — barrels had also been painted, and so rendered valueless for commercial purposes as liquor barrels, but the plaintiff did not know of the painting until after the attachment.” A majority of the members of this court unite in the opinion that, upon the foregoing facts, the case comes clearly within, and must be controlled by, the decision in Lewis v. McCabe, 49 Conn., 141. The mode of making the contract in the present case through a traveling salesman, its subsequent ratification, its subject matter and all its essential provisions, are so nearly identical with the former one, as to suggest that the former decision must have been in the minds of the parties, when the latter contract was made. In the former case, as appears from the finding, “ it was an express condition that the title to the merchandise should not vest in the vendee until it was fully paid for, and until such payments were made the title was to remain in the vendors.” In the present case it is found that the sale and delivery were “ upon the express condition that the title to the liquors should remain in the plaintiff until they were paid for.” It may be well to remark in this connection that the finding is not that such was the agreement in form, (as the defendant seems to assume,) but in reality, which excludes the idea that the transaction was colorable, or a mere subterfuge, or fraudulent in intent. The defendant however does not pretend that there is any difference in the two findings as to this feature of the contracts, (and it is the most important of all,) but claims that there is a material distinction relative to the right of sale given to the conditional vendee. In the former case it was found that the vendee was “ a retailer of liquors, and it was supposed by the parties that the merchandise would be used in his business, and in case any of it should have been sold and consumed before the conditions of sale were complied with, the vendors could only enforce their condition against such portion as might remain unsold.” In the present case the sale was upon “ the understanding and express agreement that Corture might sell and dispose — 412 — of the liquors as they should be called for by customers in the course of his business as such bar-keeper, and in case any of the liquors should be so sold or disposed of before full payment should be made by him of the entire bill of liquors bought of the plaintiff, Corture should account for and pay for the same, to the plaintiff’s agent, upon his first visit after such sales, at the price at which the liquors were billed to him ; and that the plaintiff should only enforce the condition of his sale to Corture against the portion of the liquors remaining unconsumed and unsold at retail.” Now, notwithstanding the difference in the number of words used, it seems clear that the intent and meaning are the same. In both cases the minds of the contracting parties met upon precisely the same provisions in substance. Whatever rights the vendor had or lost in the one case he had and lost in the other, and whatever right of sale the vendee had in the one case he had equally in the other. The fact that in the one case it is found that the parties mutually supposed and understood that the provisions were part of the agreement, while in the other they expressly so agreed, is too narrow a margin to predicate any legal distinction upon, or any reasoning that can lead to a different result. The fact that the parties deemed it necessary to make the provision in question, shows by necessary implication that without it the title, as they understood, was so retained by the conditional vendor that no sale at all could be made by the vendee; and it shows also that by the mutual understanding of the parties the title to be transferred, pursuant to the permission given, was the title of the conditional vendor and not that of his vendee. The same reasoning also suggests that the dictum contained in the former opinion, apparently so much relied upon by the counsel for the defendant in the present case, to the effect that where the contract must be construed to mean that the conditional vendee has full authority to sell all the property as his own, it would waive or make void the condition, applies no more to this case than it did to the former one. Corture’s authority in the present case to “ sell and dis — 413 — pose of the liquors as they should be called for by customers in the course of his business as bar-keeper,” can have no broader meaning than the permission given McAvoy in the former case, to sell in his business as a retailer of liquors. The court in that opinion did not accept the doctrine there stated as entertained by some courts, that possession, with jus disponendi added, would as matter of law make the contract colorable and fraudulent without regard to the real intent of the parties. On the contrary it was there stated that in this state “ the controlling consideration has been the bond fide character of the transaction and the honest meaning and intent of the parties, without applying any technical rule of public policy.” And upon further reflection we are prepared to re-affirm this statement, so that the true test in every such case is, did the parties intend to have the title pass on the delivery, or did they honestly intend that it should remain in the original vendor? The considerations already stated we think will suffice to show that the material provisions of the contract in the present case cannot be distinguished from those of the contract in the former case. But in this case, certain matters outside the contract, consisting of the acts of one or the other of the parties after the agreement was made, are strongly urged as impeaching its validity. In the bill rendered by the plaintiff to Corture for the amount of the liquors, the form was that of an absolute sale, and underneath the heading of the bill, in smaller letters, was a general statement as to terms and that the plaintiff did not insure delivery or safe carriage, but that they were at the purchaser’s risk, after a receipt was signed by the transportation company. Drafts, one for three months, and one for four, which were negotiable, (but never in fact negotiated or paid,) were drawn by the plaintiff on Corture and accepted by him. Also when Corture received the liquors he placed them in the bar-room where he kept other liquors, and afterwards painted and tapped the barrels and drew out some of the — 414 — contents; but the plaintiff was ignorant of these acts until after the liquors had been attached by the defendant. An obvious, and as it seems to us sufficient, answer to all these facts, is, that they were merely evidential of the true intent of the parties. It was evidence addressed to the mind of the trial judge to convince him that the alleged condition of the sale was a mere subterfuge. All these facts were considered and weighed by the court, but when it found, notwithstanding, that the sale was conditional and not absolute, and that the delivery of the liquors was in Norwich and not in New York, the evidence relied upon had spent its entire force, and it has no longer any legal significance whatever in the case. It is not the province of this court to review or revise the weighing of evidence by the trial court. The evidence referred to, while it was important to be considered upon the question as to the intent of the parties, yet obviously it all admitted of an explanation consistent with the making of the contract as found by the court. In regard to the acts of Corture referred to in this connection of which the plaintiff had no knowledge, there is of course another obvious reason why his title should not be injuriously affected on that account. We have thought best to base our vindication of the judgment of the court below entirely upon the authority of the case cited. It is quite obvious that that ease led the court to the result reached in this and there is much probability that it induced even the making of the contract in the form adopted. Our reasoning of course implies that we are well satisfied with that decision, but however this may be, conditional sales have been too long and too firmly established in this jurisdiction by repeated decisions of this court to be now called in question or to require further discussion. Since the decision in Lewis v. McCate, such sales have been distinctly approved by this court in Loomis v. Bragg, 50 Conn., 228; Cooley v. Gillan, 54 Conn., 80; Warren Manufacturing Co. v. Norwich Bleaching Co., 56 Conn., 70; and in the New Haven Wire Company cases, argued at the June Term in New Haven county, 1888. — 415 — Such sales are also recognized and approved by the necessary implication contained in the provisions of section 920 of our General Statutes, which provides that “ any property sold upon condition, and put into the visible possession of the vendee, unless otherwise exempt from execution, may be attached and levied upon, and sold or set out on execution, in any suit against such vendee, subject to the rights of the vendor to its possession or ownership ; and the party attaching or levying shall have the same rights which the vendee would otherwise have had to tender to the vendor performance of the conditions of sale” It will be observed that the statute saves the rights of the conditional vendor in every case irrespective of the subject matter of the sale; which fully answers a suggestion made in the present case, that the doctrine of conditional sales is not applicable to the sale and delivery of property, like that under consideration, which perishes in the using. Were there occasion to seek confirmation of our position as to conditional sales from the courts of other jurisdictions, much more ample support could now be found than existed when Lewis v. McCabe was decided. We have however observed a tendency in the states whose courts have held conditional sales valid against the claims of the creditors of the conditional vendee and of purchasers from him, to subject the matter to statutory regulations. Alabama, Iowa, Maine, Missouri, Kentucky, New Hampshire, Nebraska, New York, North Carolina, Ohio, South Carolina, Texas, Vermont, Virginia, West Virginia, Wisconsin, and some other states and several territories, require, under circumstances somewhat variant, that the contracts be in writing and recorded. Massachusetts, in the case of conditional sales of household effects or furniture, now requires a written contract, but it need not be recorded. The states of California, Delaware, Kansas, Michigan, Nevada, New Jersey, Oregon, Rhode Island and Tennessee, and the territories of-Montana, New Mexico, Utah, Washington and Wyoming, require neither writing nor recording. There was no error in the judgment complained of. — 416 — In this opinion Park, C. J., and Pardee, J., concurred.