Austin, Nichols & Co., Inc. v. Gilman

• Decision Date: 13 December 1923
• Citation: 123 A. 32,100 Conn. 81
• Parties: AUSTIN, NICHOLS & CO., INC., v. GILMAN.
• Court: Connecticut Supreme Court

123 A. 32

100 Conn. 81

AUSTIN, NICHOLS & CO., INC., v. GILMAN.

Supreme Court of Errors of Connecticut.

December 13, 1923

Appeal from Court of Common Pleas, New London County; Charles B Waller, Judge.

Action by Austin, Nichols & Co., Inc., against Nathan Gilman to recover damages for the fraudulent representations of the defendant. Judgment for defendant, and plaintiff appeals. Error, and judgment to be entered for plaintiff.

Henry H. Pettis and Charles L. Stewart, both of Norwich, for appellant.

Edmund W. Perkins, of Norwich, for appellee.

Argued before WHEELER, C.J., and BEACH, CURTIS, KEELER, and KELLOGG JJ.

WHEELER, C.J.

The finding sets forth that the plaintiff sold goods to one Stern to the amount of $297.94, and when their agent went to Stern's place of business to collect the same he met the defendant, who made to him the fraudulent representations which are alleged in the complaint, and in reliance upon them the plaintiff refrained from placing an attachment upon the goods in this place of business as the goods of Stern, which were in value in excess of $300. Whether the plaintiff lost anything in reliance upon these fraudulent representations depends upon whether Stern owned the goods at this time, or whether the defendant Gilman was the owner. If Stern then owned the goods, the plaintiff's loss in consequence of its reliance upon these fraudulent representations is established; if the defendant Gilman then owned them the plaintiff suffered no loss in consequence of these representations. Gilman's title is complete, provided the bill of sale from Stern to him had been on record in the town clerk's office of Bozrah for 14 days pursuant to the provisions of section 4749 of the General Statutes on October 10, 1921, applicable to the case at bar, viz.: " Any person who makes it his business to buy commodities and sell the same in small quantities for the purpose of making a profit, * * * shall, not less than fourteen nor more than thirty days prior to such sale, * * * cause to be recorded in the town clerk's office in the town where such vendor conducts such business, a notice of his intention to make such sale, * * * which notice" shall be in the manner specified in the statute and " signed by such person or in his name by his attorney. Any sale made in violation of any provision hereof shall be void as against any creditor."

" The manifest purpose of the act in question is to protect creditors of retail dealers against a class of sales which are often fraudulent, and opportunities for making which are readily afforded by the nature of the retail business and the manner in which it is usually conducted." Young v Lemieux, 79 Conn. 434, 441, 65 A. 436, 600, 20 L.R.A (N. S.) 160, 129 Am.St.Rep. 193, 8 Ann.Cas. 452; Walp v. Mooar, 76 Conn. 515, 521, 57 A. 277.

The bill of sale to Gilman was recorded September 26th, and the plaintiff was prevented from attaching the goods on October 10th. Whether the bill of sale was recorded 14 days or not on October 10th, depends upon whether the day of record is to be excluded from the computation or not.

In Weeks v. Hull, 19 Conn. 376, 50 Am.Dec. 249, the question was whether the order limiting the presentation of claims passed December 14th, had expired when a claim was presented on June 14th following, June 13th being Sunday? We say:

" We had supposed, that in this state at least, the case of Sands v. Lyon, 18 Conn. 18, following the case of Avery v. Stewart, 2 Conn. 69, had settled the true rule that not only mercantile contracts, such as bills of exchange, promissory notes, policies of insurance, etc., as well as wills and all other instruments, are so to be understood, as that the day of the date, or the day of the act from which a future time is to be ascertained, is to be excluded from the calculation; although there may be some earlier cases, elsewhere, suggesting a different rule. * * * So also we are satisfied that the modern cases, in this country, have adopted the same rule in the construction of statutes, and as governing all proceedings under them, as in cases like the one now before us; thus establishing uniformity, where diversity of computation was both unnecessary and perplexing; unless perhaps in some few instances, in which long usage may have been different."

We applied this rule of computation to the statute of limitations with regard to promissory notes (Blackman v Nearing, 43 Conn. 56, 21 Am.Rep. 634) to the statutory provision for a dissolution of attachments made within 60 days next preceding the commencement of proceedings in...