Greenthal v. Lincoln, Seyms & Co.

Baldwin, J. The complaint alleged that on March 6th, 1895, the plaintiff was lawfully possessed of the goods in question, and that the defendants then forcibly took and carried them away. The “revised answer,” not denying his possession, justified the taking by attacking his title. Like the answer upon which the action was originally tried, this admitted, because it did not deny, that the plaintiff was in possession at the time of the attachment. Greenthal v. Lincoln, Seyms & Co., 67 Conn. 372, 378. That such was the case is also expressly found by the trial court. The defendants insist, nevertheless, that the various circumstances detailed in the finding are such as to demonstrate that there was no sufficient change of possession under the sale, to render it valid as against their attachment. A merely colorable delivery will not support a sale against the vendor’s creditors ; but this is because, in such a case, he really remains, or is allowed to appear to them to remain, in possession. Neither the pleadings nor the finding afford any foundation for a claim that the possession of the goods in question, at the time of the attachment, was not fully in the plaintiff. Had it been intended to admit simply a formal change, but to deny that it was of so open, visible, and permanent a nature as to avail against attaching creditors, the answer should have traversed the averment in the complaint that the plaintiff was lawfully possessed of the goods at the time when they were taken. But, aside from this, the trial court has found that they were delivered to him in person on the day of the sale, and that he immediately put the store in the hands of his son, for whom he had bought it, who gave the defendants full information of the transfer to his father before they made their levy. That his son was the son-in-law of Greenberg; that the entire business was the subject of the sale; that Greenberg’s son continued to take part in the management of the store; and that the old sign was not removed, nor any new one set up near it, are facts which the trial court; no doubt, carefully considered; but they are not sufficient, as matter of law, to show that its ultimate conclusions as to a change of possession were incorrect. [390] The main issues presented by the pleadings related to the good faith of the plaintiff as affecting, not his possession, but the title under which that possession was acquired. If he was a participant in the fraud of the vendor, he gained no title which an attachment could not defeat. There were circumstances strongly indicative of such participation; but the question was one of fact, and its decision by the trial court is not open to review on this appeal. Where the validity of a sale, as against the vendor’s creditors, turns on the character of the possession delivered, the law lays down certain rules which a court of error can enforce, notwithstanding any deductions which a trial court may make from the established facts. Mead v. Noyes, 44 Conn. 487. But the good faith of a party in making a contract is always to be determined as a question of evidence, as to which (except in case of a sale not followed by a delivery of possession which satisfies the law) the decision of the jury or other trier is conclusive. The claim of the defendants that the sale was void because insolvency proceedings followed within sixty days, was properly overruled. It was, at most, only voidable. Greenthal v. Lincoln, Seyms & Co., 67 Conn. 372. The second defense sought to reduce the damages, by reason of the surrender of the goods to the trustee in insolvency, and it is found that this was done in consequence of an order to that effect procured by him from the Court of Probate. This order can be no justification as against the plaintiff, who was no party to the insolvency proceedings. If, however, the trustee in insolvency had become the real owner of the goods, their voluntary surrender to him, on demand, without process of law, would reduce the damages as effectually as if they had been given back to the plaintiff himself. The defendants were in nó contract relation with the plaintiff which could affect their right to dispute his title. If the goods of A are wrongfully taken, when in the temporary possession of B, A is the party really injured. So if goods of B are wrongfully taken from his possession, but subsequently the title and right of possession are, by operation of [391] law, transferred to A, they may properly be returned to A, on his demand. A trustee in insolvency does not stand in the position of an attaching creditor, with respect to a fraudulent transfer by the insolvent. Such a creditor has no right to hold the goods, except by virtue of his attachment. That gives him a lien, which may ultimately result in a transfer of title by means of an execution sale. But the trustee in insolvency acquires a title and right of immediate possession by virtue of his appointment. In the case at bar, it appears that insolvency proceedings were commenced and an appointment made within sixty days after the sale and the attachment. The attachment was therefore avoided ipso facto, and the sale was voidable, at the option of the trustee, if the conditions existed which the defendants claimed. General Statutes §§ 523, 501, 505. These were that Greenberg was in failing circumstances when he sold out to the plaintiff, and did this with a view to insolvency, and not in good faith, in the usual course of business. Appropriate issues of fact were formed as to these points, and they have been found for the plaintiff. This left no question of law open, as to the amount of damages, and judgment was properly given for the value of the goods at the time of the attachment. By demurring to so much of the second defense as set up the surrender in conformity to the order of the Court of Probate, the plaintiff might have raised the question whether the rights of the trustee in insolvency could be made the subject of inquiry in a suit to which he was not a party. Not having done so, it was proper for the trial court to determine them, so far as they were presented upon the issues joined. Such an adjudication could not settle what they were, ás between him and the plaintiff, but is conclusive in that respect, as between the parties to this action. There is no error in the judgment appealed from. In this opinion the other judges concurred.