Am. Auto. Co. v. Perkins

• Decision Date: 01 November 1910
• Citation: 83 Conn. 520,77 A. 954
• Court: Connecticut Supreme Court
• Parties: AMERICAN AUTOMOBILE CO. v. PERKINS.

77 A. 954

83 Conn. 520

AMERICAN AUTOMOBILE CO.

v. PERKINS.

Supreme Court of Errors of Connecticut.

Nov. 1, 1910.

Appeal from Court of Common Pleas, Hartford County; John Coats, Judge.

Action by the American Automobile Company against Thomas C. Perkins. From a judgment for defendant, plaintiff appeals. Reversed and remanded for judgment for plaintiff.

The pleadings are as follows:

Following form 74, p. 318, Practice Book, paragraph 1 of the complaint alleges that on March 11, 1909, the defendant made and delivered to the plaintiff his check on the Connecticut River Bank of Hartford for $500; paragraph 2 that the check was duly presented but was not paid; paragraph 4 that the check remains the property of the plaintiff. Paragraph 3 alleges the payment of protest fees. The answer states four defenses. The first denies paragraph 1 of the complaint and alleges want of knowledge as to the remaining paragraphs. The second alleges that the paper sued upon was delivered, upon an express agreement that it should not be used as a check, but should be held by plaintiff's agent until the defendant had opportunity to mail a numbered check from his personal checkbook, and that before the defendant had such opportunity said agent improperly attempted to use said paper as a check. The third defense avers that said numbered check was to be given as part payment for an automobile, "which the defendant wished to order or was considering ordering," and that before said numbered check was to be delivered, "and before the defendant had consummated said order or the plaintiff accepted the same, the defendant notified said agent, and the plaintiff, that he had changed and revoked his wish to order the automobile" and requested the return of said paper, and that the plaintiff failed to return it, and improperly attempted to use it as a check. The fourth defense avers that the alleged check was given and received without consideration. The affirmative averments of these defenses were denied in the reply.

Upon the issues thus framed, the trial court found these facts: The defendant on and prior to March 10, 1909, entered into negotiations at Boston, with the plaintiff; the latter acting therein through its agent and business manager, one William A. Webber. As a result of said negotiations, the defendant, on March 10, 1909, signed and delivered to said Webber this writing:

"Order.

"Boston, March 11/09.

"American Automobile Company, 16 Columbus Avenue, Boston—Gentlemen: I wish to order for delivery April 25.—1909 * * * 1 50 Roadster, with rumble * * * as follows: [Here follows special description of car.] Price to be four thousand forty-five dollars f. o. b. Indianapolis. To be shipped via Big Four. Deposit of $500# paid herewith and balance of $3,545.xx/100 to be paid on arrival of car.

"[Signature] Thomas C. Perkins.

"Street................

"City, Hartford, Conn.

"State................

"Countersigned: ........, Salesman."

At the same time the defendant signed and delivered to said Webber as agent, as aforesaid, a check, in the following form:

"Connecticut River Banking Co.,

"Hartford, Conn.,

March 11, 1909. No. "Pay to the order of American Automobile Co. $500.no/100 Five Hundred and no/100 ............................Dollars. 38 State Street & 124 Massachusetts Ave.

"Thomas C. Perkins."

Defendant objected to delivering said check because it contained erasures and interlineations made on a blank, intended to be used for a check, on the State Street Trust Company of Boston, and was not a numbered check taken from the defendant's checkbook, intended to be used for checks on a bank in which defendant had money on deposit. It was agreed that Webber should hold said check without depositing the same, so as' to give the defendant an opportunity upon his return to Hartford to substitute a check to be drawn on a blank taken from his regular checkbook and duly numbered, and to be sent to Webber as a substitute for check then given. Defendant went on a short business trip, reaching Hartford on the evening of March 12, 1909. The written instrument called "Order" was drawn in duplicate, both signed by the defendant, and one copy was retained by the defendant and the other given to Webber for the plaintiff. Neither was signed by plaintiff or Webber until afterwards, when Webber countersigned the copy given to him, "W. A. Webber, Salesman"; but such countersigning was without the knowledge of defendant. Webber informed the defendant that an order on plaintiff for an automobile would not be accepted unless a check for $500 was given with such order, and thereupon defendant gave to Webber, for the plaintiff, the check and order above described, subject to the agreement above stated, and Webber received the same for and on behalf of the plaintiff, and the plaintiff did not otherwise accept said order except as hereinafter stated.

On the afternoon of March 13, 1909, defendant, in Hartford, wrote and mailed to plaintiff, in Boston, a letter, the material part of which follows: "Hartford, Conn., March 13, 1909. The American Automobile Company, 16 Columbus Avenue, Boston, Mass.—Gentlemen: Referring to instructions I gave you last Thursday to order an 'American Roadster' for me for delivery the latter part of April. I beg to say upon reaching home I find some matters that came to a head which I did not anticipate, which will make it impossible for me to use this car until the latter part if at all this season; therefore, I wish you would cancel the instructions I gave you and return my check for $500, which I left with you. * * * Yours very respectfully, Thomas C. Perkins." And on the same day stopped payment on said check at the bank in Hartford.

On March 13th, before receiving said letter of defendant, Webber, on behalf of the plaintiff, caused said check to be indorsed by plaintiff's treasurer, in blank, and deposited it for collection; and on March 15, 1909, it was presented at the banking house of said Connecticut River Banking Company, for payment, and was not paid, and was duly protested, and was returned to the plaintiff, and at the time of the trial was owned by plaintiffs and was unpaid. Soon after said check was returned to the plaintiffs, they forwarded it to Hartford for collection, and payment was demanded of defendant and was refused. The plaintiffs were not manufacturers of automobiles, but sales agents, as both parties understood; and both understood that plaintiffs were to procure said automobile to be finished, equipped, and shipped in and from Indianapolis by a manufacturer there located. After the receipt of the letter, the plaintiffs took no further steps to build, equip, or deliver said automobile, and plaintiffs have never shipped, or caused to be shipped, to the defendant said automobile or any automobile, or tendered to the...