National Cash Register Co. v. Woodbury

Torrance, J. In July, 1896, the plaintiff delivered to Raiche a cash register, under a contract of sale conditioned that the title to the register should remain in the plaintiff after such delivery until the price of the register should be paid. The contract was neither acknowledged nor recorded as required by the statute. In this condition of things, and while the price of the register remains unpaid, Raiche makes an assignment in insolvency for the benefit of his creditors, under our statute, and his trustee, finding the register in Raiche’s use and possession, inventories it and holds it as part of the insolvent estate. ■ If these were all the facts in the present case, it would be governed, as the plaintiff concedes, by the decision just made by this court in the case of In re Wilcox & Howe Co., ante, p. 220; but the plaintiff claims that there is an additional fact in this case which differentiates it from the Wilcox & Howe Co. case, and that is, the knowledge which it is alleged and admitted the defendant had of certain matters prior to and after his appointment as trustee. It is admitted that the defendant, prior to the assignment in insolvency, and of course prior to his appointment as trustee, had notice of the conditional bill of sale under which Raiche held the register, and of its terms, so far as they are recited in the reply; and that after his appointment as trustee the defendant had notice that Raiche had not made the monthly payments as agreed. We are of opinion that this notice and knowledge on the part of the defendant, as alleged, is of no importance in the [325] present case. In Ms argument on tMs part of the case, the plaintiff assumes that if the creditors of Raiche, prior to the assignment, had had the notice and knowledge wMch it is alleged the defendant had, the conditional bill of sale would be available to the plaintiff as against them. Whether this would be so or not, we have no occasion to consider nor to decide here, for we are of opinion that the knowledge of the defendant, prior to the assignment, was not the knowledge of the creditors at all, either in contemplation of law or otherwise. What he then knew of the conditional sale, he knew simply as an individual and not as an agent or representative of the creditors. If such knowledge could ever be imputed to the creditors, it clearly could not be so imputed until the defendant was appointed trustee and began to act for them in that capacity. Farmers' & Citizens' Bank v. Payne, 25 Conn. 444; Farrel Foundry v. Dart, 26 id. 376; Platt v. Birmingham Axle Co., 41 id. 255; New Haven M. & W. R. Co. v. Chatham, 42 id. 465. No claim is made that he communicated this knowledge to all or any of the creditors, and for aught that appears he was then as to them an unknown stranger. Prior to the assignment, then, the creditors of Raiche were not affected by the knowledge possessed by the defendant as an Mdividual, and they were, up to that time, so far as the plaintiff is concerned, creditors without notice. The fact, then, that the defendant possessed such knowledge prior to the time of his appointment, cannot avail the plaintiff. Can the fact that he possessed such knowledge immediately after his appointment as trustee, as he undoubtedly did in point of fact, be of any avail to the plaintiff? We thmk not. So far as the creditors in the present case are concerned, such notice must be regarded as then coming to the trustee for the first time, and as coming top late. After the assignment, when the property of Raiche had been sequestered by law for the benefit of his creditors, notice of the conditional sale, other than that wMch the statute requires, came too late to be of any avail to the conditional vendor. The property then was in a position similar to that wMch it would [326] have been in if it had been attached or levied upon by creditors without notice; and- in such case, clearly, notice of the conditional sale other than that which the statute requires, coming to such creditor after the levy of attachment or execution, comes too late to be of any avail to the conditional vendor. The case at bar, then, is not distinguishable from the case of In re Wilcox & Howe Co., and is governed by the decision in that case. There is no error. In this opinion the other judges concurred.