Lovell v. Hammond Co.

Baldwin, J. The real transaction, which was subject of this action, was a sale by the insolvent debtor of goods which he had pledged to the defendant, and its appropriation of the avails, after its right to the benefit of the pledge had ceased. The complaint erroneously described this as a sale — 508 — by the insolvent debtor to the defendant, and a loan of money. Under these circumstances, there was no error in the allowance of the amendment of the complaint. Allen v. Woodruff, 68 Conn., 369. The substitution, by the amendment, of a cause of action founded on a tort for one founded on a contract, made it proper to grant the motion to strike out the plea of set-off. General Statutes, § 876, only applies when there is a “right of set-off,” and by § 1016 such right is recognized only in actions brought for a recovery of a debt, and when there are mutual debts between the parties. The demurrer was properly overruled. The complaint showed a sale by the defendant of part of certain goods of the insolvent held in pledge; a subsequent termination of its right to retain the benefit of the pledge, followed by a refusal, after due demand, to pay over to him the proceeds of the sale; an assignment in insolvency of all his estate, before the Court of Probate, resulting in an adjudication of insolvency, and the qualification of the plaintiff as trustee of said estate; another demand by the latter as such; and a conversion of the proceeds of the sale by the defendant to its own use. The defendant contends that an assignment by an insolvent debtor of all his estate, without further words, does not comprehend any rights of action founded on tort; and it is not without authority for this position in decisions rendered before we had adopted any general system of insolvency procedure. Stanly v. Duhurst, 2 Root, 52; Bird v. Clark, 3 Day, 272. But the adjudication of insolvency and qualification of the trustee of the estate, which are averred, presuppose a valid assignment; and none can be valid, under our present statutes, which does not embrace all the property of the insolvent, (except such as is specially exempted,) including choses in action. General Statutes, §§ 501, 578. The trustee in insolvency may sue in his own name “ upon any claim ” belonging to the estate. General Statutes, § 533. For all claims against an insolvent debtor, which are founded in tort, his estate is expressly made liable. General Statutes, — 509 — § 587. A fair construction of our insolvent laws, as they now exist, evinces the intention of the legislature that the insolvent estate should have the benefit of all rights of action belonging to the assigning debtor, for injuries affecting his property, whether they be founded in contract or tort. Whitaker v. Gavit, 18 Conn., 522; Gillet v. Fairchild, 4 Denio, 80. The defendant insists that it had á right to take the money in question, and a,pply it as a partial payment of its claim against Smith, the insolvent debtor. The finding shows that Smith and the defendant agreed on May 24th that it would prepare a three months’ note for the amount of this indebtedness; that he would sign it and procure its indorsement by a responsible party on or before May 26th; and that this should be accepted by the defendant in satisfaction of its claim. On May 25th Smith procured an indorser for such a note, whom the defendant on inquiry ascertained to be a responsible party. The defendant thereupon prepared a note for him to indorse, and drew it so as to be payable on demand. The indorser objected to this change in the agreed terms, and Smith, on May 26th, requested the defendant to prepare another in the proper form, but it refused to do so. Meanwhile, early on May 25th, the defendant, in violation of the agreement, had sent an officer to attach Smith’s stock in trade, by whom the latter had been induced to execute a bill of sale of his stock to the defendant, to serve as temporary security until the responsible indorser, provided for in the agreement, could be procured, and then to be returned to Smith and to be of no legal effect. On May 26th, after its refusal to prepare a three months’ note, the defendant asserted title under this bill of sale to all that it embraced, and to the proceeds of such sales of goods in stock as had been made by Smith since its execution; took possession of a cheek and moneys representing such proceeds, and removed the remaining goods. Smith was required by the officer to indorse the check, and it was indorsed accordingly. These acts plainly amounted to a ratification of the oral — 510 — agreement under which the bill of sale was given. When the defendant claimed the benefit of that transaction, it could not escape the burdens which were incident to it. The object of the bill of sale was to pass the title, not to describe the purpose for which title was passed. That might be shown by parol. Post v. Gilbert, 44 Conn., 9, 18. The bill of sale, therefore, became of no legal effect on May 26th, when Smith tendered a responsible indorser, and was met by a refusal to prepare the stipulated note. The subsequent removal of the goods and appropriation of the check and cash were therefore wrongful, and constituted a conversion, for which Smith had a right of action when he filed his assignment in insolvency. It is claimed that on the refusal of the defendant to prepare the proper note, Smith might and should have prepared one, himself, and tendered it, properly signed and indorsed. If he had done so, it would not have discharged the debt. There is no accord and satisfaction without actual performance. But the contract between the parties did not call upon him for such a tender. They had agreed that the defendant should prepare the note. This may have been important to Smith as compelling it to make a definite statement of the amount of its demand, or as relieving him from the task of drafting an instrument of a kind with which he was not familiar; but whether important or unimportant, it was a part of the agreement by which their rights were determined, and Smith fulfilled his part of tha.t agreement when he tendered a responsible indorser within the stipulated time. The defendant complains that the judgment appealed from includes the face value of the check, although it is not found that the check was ever paid. The check was a proper subject of an action for a conversion, and if the damages awarded were excessive, it was for the appellant to show it, by requesting a finding that less was collected or collectible than the amount for which it was drawn. Tucker v. Jewett, 32 Conn., 563. At the trial in the Court of Common Pleas, Smith was called as a witness for the plaintiff, and testified that $30 was taken out of the money drawer in his market on the — 511 — night when the defendant removed the goods. It is made a reason of appeal that the court excluded an inquiry, subsequently put to a witness for the defense, as to whether Smith had any ground for making that statement. This ruling was obviously correct. One witness cannot be thus asked for his opinion as to the basis of another’s testimony. A single point remains for consideration, the determination of which is not wholly free from difficulty. The plaintiff had previously brought an action of replevin against the defendant, under which he replevied the stock of goods removed on May 26th, and obtained a judgment that he retain possession of them and recover $1 damages and costs. The defendant insists that as whatever property was removed on May 26th, including the cash and check, was taken under a claim of title derived from the bill of sale, such taking was a single and entire act, and constituted a single and entire cause of action, which was included and merged in that judgment, so that the truth of the second defense was in fact established by the finding, though the issue closed upon it has been in form found for the plaintiff by the trial court. The action of replevin, with us, is purely a statutory one, •and, while originally restricted within very narrow limits, may now be maintained for “ any goods or chattels, in which the plaintiff has a general or special property, with a right to their immediate possession.” General Statute, § 1823. Money is not repleviable, whether it be in the form of coin or paper, after it has passed out of the hands of the original wrong-doer and become mingled with the general mass of the circulating currency of the community. 2 Saunders on Pleading & Evidence, *760. It does not appear, and we cannot presume, that either the money or the cheek remained in the defendant’s possession, and in a condition to be identified, when the replevin suit was brought. They cannot, therefore, be considered ast proper subjects of that action. If the money had been paid ■out, whoever took it had acquired an absolute title. If the check had been presented and honored, it belonged to the •drawer. — 512 — The plaintiff, instead of bringing replevin, might have sued in a single action for a conversion of the goods, money and check; but he had also a right to seek the specific recovery of the property which he could follow, and damages for the conversion of that which he could not follow. So far as concerned his redress for a conversion of irrepleviable property, he was forced to bring an ordinary action in personam, and could not make claim for it in his statutory replevin suit. General Statutes, § 905. No matter can be barred by a former judgment, which was not, and could not have been made, a subject of recovery in the original action, though it may form a part of the transaction out of which that action arose. Secor v. Sturgis, 16 N. Y., 548, 559; Stark v. Starr, 94 U. S., 477. Where there is a choice of remedies, the election belongs to the plaintiff, and he is not obliged to be governed in making it by the convenience of the defendant. There is no error in the judgment appealed from. In this opinion the other judges concurred.