Chillingworth v. Eastern Tinware Co.

Toukance, J. This is an action to recover damages for the conversion of personal property to which the plaintiff claimed title under an execution sale. The defense was a general denial. On the trial below the plaintiff claimed that the property described in the complaint was formerly the property of the United States Stamping Company, a manufacturing corporation organized under the laws of the State of New York, and carrying on business in Portland in this State; that in November, 1888, one Samuel H. Smith brought a suit against said Stamping Company in the Superior Court for Middlesex County in this State, and attached therein said property in Portland as the property of said corporation; that afterwards, in February, 1891, judgment by default Avas rendered in said suit in favor of Smith for thirty thousand dollars; that upon said judgment an execution was issued and levied upon the attached property in March, 1891; and that in April, 1891, said property was duly sold under said execution to the plaintiff. The evidence offered by the plaintiff in support of these claims Avas mostly documentary. One of the important questions in the case was whether the United States Stamping Company at the time of the attachment or the levy and sale aforesaid, owned or had any interest in the personal property described in the complaint ; and to prove that it had, the plaintiff, among other — 313 — matters, put in evidence the fact that said corporation in July, 1887, made and delivered a chattel mortgage of said property to August Pottier, to secure an indebtedness from it to him of nearly sixty thousand dollars. This was substantially all the evidence offered by the plaintiff on this point in the case. He also offered evidence tending to show that this chattel mortgage was executed by said corporation in contemplation of insolvency, and claimed that if the mortgage was so executed, it was void under the laws of New York. The defendant claimed that the chattel mortgage was valid. After the plaintiff had rested his case the defendant moved for judgment as in case of nonsuit, on several grounds, among which were these two on which the court granted the motion, namely: that the evidence did not shovr prima facie that the Stamping Company owned or had any interest in the property at the time of the attachment or levy and sale under which the plaintiff claimed ; and because, assuming the validity of the chattel mortgage aforesaid, the evidence showed that the levy under which the plaintiff claimed, ignored the existence of said mortgage, and was therefore invalid. The court below rendered judgment as of nonsuit, and refused on motion made for that purpose to set it aside, and the plaintiff appealed to this court. The first question is whether the plaintiff’s evidence fairly tends to show that the Stamping Company owned the property at the time in question. As before stated, the plaintiff’s case, upon this point of it, rests chiefly upon the evidence relating to the execution and delivery of the chattel mortgage. We think it must be conceded that the evidence upon this point, if it stood alone and uncontradieted, does fairly tend to prove that the Stamping Company was the owner of the property in July, 1887; and in the absence of anything to the contrary the presumption would be that this ownership continued up to the time of the attachment and the levy of the execution. But this evidence as to the execution and delivery of the chattel mortgage does not stand — 314 — alone, and the defendant claims that its probative force is entirely overcome by the other evidence introduced by the plaintiff in the case. That other evidence in substance consists of the following matters :— The organization in September, 1888, of the Eastern Tinware Company, one of the defendants, under the laws of New York, for the purpose of manufacturing tin ware in Portland in this State, of which corporation Joseph Scheider, the other defendant, was and is the president; the certificate of attachment in the case of Smith v. The United States Stamping Co., dated November 22d, 1888, which recites that the land in Portland, on which the property here in dispute was then located, formerly stood of record in the name of the United States Stamping Company, “ but has recently been transferred to the Eastern Tinware Company ”; and further reciting that the property here in dispute, and which was then attached, was then “ situated in the buildings on the premises formerly owned and occupied by the United States Stamping Company in said Portland, but now occupied by the Eastern Tinware Company, and consisting of machinery, tools, implements, etc.”; and further reciting that the Eastern Tinware Company had “ the charge and possession ” of the personal property attached at the time of the attachment; evidence showing an execution sale to Rebecca E. Ingersoll, in August, 1888, of all the right, title and interest of the United States Stamping Company in and to substantially all of the property here in dispute; and also evidence tending to show that at the time of the execution sale to the plaintiff, the Eastern Tinware Company claimed to own the property in dispute, and then refused to permit the plaintiff or the officer to go into the building, or to interfere with or remove any of the property. It furthermore appears from the record, by statements of plaintiff’s counsel, that the Pottier mortgage was foreclosed, and the property covered by it — which is the property here in dispute — sold under such foreclosure on the 4th of August, 1888, and that the title to said property under said — 315 — foreclosure sale, ultimately became vested in the Eastern Tinware Company prior to the Smith attachment in November, 1888. These statements of counsel are not strictly speaking evidence in the case, and they were made, principally, in the hearing upon the plaintiff’s motion to re-open the case ; nevertheless we think they should be taken into account in determining whether the court below erred in granting the nonsuit. They were made in open court, for the purpose of giving to the court in this informal way such knowledge of the matters as the counsel possessed, and for the legitimate purpose of influencing the action of the court. Of course these statements of counsel for the plaintiff as to the foreclosure of the chattel mortgage, and as to the title thereby acquired vesting in the plaintiff, must be taken in connection with his claim that the mortgage was void, and therefore all the proceedings under it were of no effect as against Smith, or the plaintiff who claims under him. The foregoing is the substance of the evidence in the case bearing against the presumption that the ownership of the Stamping Company continued till the time of the Smith attachment. Taking it altogether and assuming the validity of the chattel mortgage, we think it entirely overcomes the presumption in question ; and even if we assume the invalidity of the chattel mortgage, we still think the other evidence in the case tends fairly to show that the Eastern Tinware Company, at the.time of the attachment, was in éxclusive possession of this property, claiming it as its own; and that such evidence overcomes the presumption relied upon by the plaintiff, and leaves him substantially in the position of one having no material evidence upon a vital point in his case. The conclusion here reached makes it, perhaps, unnecessary to examine the second ground upon which the nonsuit was granted, involving the question as to the validity of the chattel mortgage of July, 1887; but as that was a prominent question in the case, and may come up again if another suit is brought, and has been fully argued before us, we — 316 — have deemed it advisable to express our views, briefly, upon that question. The mortgage in question was made by a New York corporation to a creditor of the same State, and it fairly appears from the evidence that the instrument was made and executed in New York on the 13th of July, 1887. Whether it was delivered in New York or in Connecticut does not perhaps clearly appear, but for our present purpose it is perhaps fair to assume that it was delivered in New York. Upon this point in the case the plaintiff’s claims, briefly stated, are these: This mortgage was made in the State of New York by a New York corporation in contemplation of insolvency ; its validity is to be determined by the law of the State where it was made; by that law it was utterly void; and that being so, neither recording it in Portland, nor any other subsequent act could give it any validity. We think it must be conceded, upon the evidence as it stands, that the mortgage was made in contemplation of insolvency within the meaning of the New York statute; and also that it comes within the language of the New York statute which declares such a transfer to be utterly void. 3 R. S., 8th Ed., 1729, § 4. The plaintiff’s claim is based upon two assumptions, namety: that the mortgage must be regarded as a New York transaction, entered into with reference to the laws of New York; and that it comes within the spirit of the New York laws, and would be held by the courts of that State to be void. With regard to this last assumption it may be questionable whether the New York courts would hold that a mortgage of real estate or personal property situated outside of that State, comes within the spirit of the law; and we are not aware of any case there where it has been so held. In Roe v. Jerome, 18 Conn., 138, a New York attorney purchased in New York an inland bill of exchange for the purpose and with the intent of bringing a suit upon it in Connecticut. His act in so doing came clearly within the language of the New York law, which made such a purchase for the purpose of bringing suit upon it, a misdemeanor pun — 317 — ishable by fine and imprisonment and disbarment; but this court held that such a purchase for the purpose of bringing suit upon it in Connecticut was not within the spirit of the law, and was not prohibited. In this view of the matter it is perhaps not clear that the New York courts would hold the mortgage to be void ; but however this may be, we think the transaction must be regarded as a Connecticut transaction entered into with reference to Connecticut law, and that in this aspect of it our courts must regard it as a valid transaction, whatever view the courts of New York might take with regard to it. The mortgagor was, indeed, a New York corporation, but it was empowered to do business in this State, and for some years prior to the mortgage its principal business had been carried on here, and so far as the evidence shows, nearly all its property was here. At and before the time of the mortgage it owned valuable real estate here, on which, at the time of the mortgage, all the property covered by the mortgage was situated, consisting of machinery fixed and movable, and tools and implements of divers kinds, in permanent use there in connection with the business carried on in Portland. The mortgage described all of the property as property situated in Portland in the factory of the mortgagor; it was made, executed, witnessed and acknowledged, as required by our law; on the day after its execution it was duty recorded on the Portland land records as required by our law; and it was executed before a commissioner for this State in New York. The mortgage affected no property in New York, and was not intended to have any operation or effect upon property there situated; it affected and was intended to affect Connecticut property only, and to have its entire beneficial operation and effect as a security here. Under these circumstances the mere fact, if it be so, that the instrument was formally executed and delivered in New York is not, of itself, decisive of the question as to what law shall control in determining the validity of the mortgage. The general rule that the lex loci contractus shall govern in this matter is, theoretically at least, founded upon the — 318 — presumed intention that the parties contracted with reference to that law; and when the contract is to be performed elsewhere, or is to have its entire beneficial operation and effect elsewhere, then the law of the latter place is to govern; because, in the absence of anything to the contrary, it is presumed that the parties so intended. “ The rules already considered, suppose that the performance of the contract is to be in the place where it is made, either expressly or by tacit implication. But where the contract is, either expressly or tacitly, to be performed in any other place, there the general rule is, in conformity to the presumed intention of the parties, that the contract, as to its validity, nature, obligation, and interpretation, is to be governed by the law of the place of performance.” Story’s Conflict of Laws, § 280. “ Contracts are to be construed and interpreted according to the laws of the State in which they are made, unless from their tenor it is perceived that they were entered into with a view to the laws of some other State.” Blanchard v. Russell, 13 Mass., 1, 5. In Greathead v. Walton, 40 Conn., 226-236, this court said: “If the law of New York would not, under the circumstances, impose any liability on the defendant, we must take it for granted that the parties entered into this contract with reference to the laws of Connecticut, under which, certainly, a liability was incurred. ‘Natural Justice,’ says Mr. Justice Blackburn in his work on Sales, ‘ mutual convenience, and the practice of all civilized nations, require that contracts, wherever enforced, should be regulated and interpreted according to the law with reference to which they were made.’ ” This principle was applied also in Mason v. Fuller, 36 Conn., 160, where a marriage solemnized in the State of Massachusetts, and entered into with reference to Connecticut law was, for the purpose of determining the property rights of the parties, held to be a Connecticut marriage. Suppose the instrument in question had been made, executed and delivered in New York to the mortgagee, with the understanding between the parties that the pi’operty — 319 — therein described was to be delivered in Connecticut next day, and in accordance with that understanding the property had been actually so delivered next day; could there be any doubt in such case that the law of this State would govern as to the validity of the instrument? We think not. The case supposed is substantially the case of Mead v. Dayton, 28 Conn., 33. There the contract of sale was made in Connecticut, with an agreement, for the express purpose, known to both parties, of evading our insolvent laws, that the property should be delivered in New York, which was done. The court held it to be a New York transaction, the validity of which was to be determined by the laws of that State. In the case at bar no actual delivery of the property was made in this State, nor was such a delivery probably contemplated at the time of the sale; but this was only because the recording of the mortgage in Portland was a substitute for such delivery, and was the legal equivalent thereof. That act, so far as there was anjr real value to the mortgage, was the consummating act, and must have been so regarded by the parties. Under the circumstances disclosed by the evidence in the case as it stands, we think the mortgage must be regarded as if the transaction, begun in New York, had been performed and completed here in Connecticut; and under our law we think the corporation might prefer in this way one of its creditors, and that the preference where there was no actual fraud — and none was claimed or appears to exist in this case — could only be set aside by proceedings in insolvency. Warner Glove Co. v. Jennings, 58 Conn., 74. This view of the case renders it unnecessary to consider the other grounds upon which the defendant asked for a nonsuit. There is no error. In this opinion the other judges concurred.