Talcott v. Waller

EACOMBE, Circuit Judge (after stating the facts as above). We concur with Judge Platt in his conclusion that, admitting that defendant was negligent in not perfecting the appeal, plaintiff' has suffered no damage, because, had the appeal been perfected, the result would have been an affirmance of the decision of the probate court. The New York authorities (Gihon v. Stanton, 9 N. Y. 476; Matter of Atwood, 3 App. Div. 578, 38 N. Y. Supp. 338) correctly state the law, viz., that under such a contract there is nothing owing to the factor until he has sold the goods and they have brought less than his advances. His claim then can be only for the deficiency. In a recent case decided by this court, Ommen v. Talcott, 188 Fed. 401, July 10, 1911, the defendant, who is plaintiff here, contended that such was the law in New York. The same rule evidently prevails in New England states. Balderston v. National Rubber Company, 18 R. I. 338, 27 Atl. 507, 49 Am. St. Rep. 772; Erothingham v. Everton, 12 N. H. 239. We understand this to be the general commercial law, and plaintiff in error cites no case to the contrary. His contention is based wholly upon the language of the General Statutes of Connecticut of 1887 relating to insolvent estates. He cites two sections: “Section 587 provides that any claim against the- estate of an insolvent debt- or, \yhether founded in contract or tort, may be proved before the commissioners and allowed by them. “Section 590 provides that if any creditor having any security fon. Ms claim against the insolvent estate, upon any property of such estate, shall present Ms claim to the commissioners, they shall inquire into the cash value of such security and report the same to the court of probate and, if they allow such claim, shall notify the creditor of the amount of the claim allowed and of the valuation of the security, and unless such creditor shall elect to relinquish such security he shall be entitled to a dividend from the estate only upon the excess of his claim over the valuation of the security.” We do not construe these sections to include a “claim” which is not really an existing claim — a present indebtedness from the insolvent to the claimant. Since, in the case at bar, there could be no indebtedness from Atwood & Sons to plaintiff until sale of the goods and resultant loss, there was nothing on which-to found a claim. Plaintiff was not a “creditor” of the insolvent estate. In disposing of the case on this ground, it must not be assumed that we have reached the conclusion that actionable negligence on the part of the defendant was proved. The statutes, rules, and practice [727] as to such appeals in Connecticut were apparently intricate qnd obscure, and, if we found it necessary to go into that branch of the case, we might reach the conclusion that there was no cause of action for negligence; hut we see no reason to enter into such discussion. The judgment is affirmed.