B. C. S. Corp. v. Abbott
| Decision Date | 04 February 1941 |
| Docket Number | File 60637 |
| Citation | 9 Conn.Supp. 284 |
| Court | Connecticut Superior Court |
| Parties | B. C. S. CORPORATION v. LYNN B. ABBOTT ET AL. |
The assignee of the conditional vendor of an automobile brings this action in replevin against the vendee, a deputy sheriff who attached the automobile in an action on indebtedness arising before the sale of the automobile, and the attaching creditor. The sale, and the assignment to the plaintiff, took place on March 7, 1940. The attaching creditor attached the automobile on May 22, 1940, and judgment was subsequently obtained and execution issued, but the plaintiff, in this action, replevied the automobile, thus preventing the execution sale. The conditional sales contract was filed for the first time on May 27, 1940. The plaintiff alleges that it failed to file the conditional sales contract through " neglect, oversight or other cause", and alleges further that the attaching creditor had personal notice and knowledge of the conditional bill of sale and its provisions prior to May 22, 1940, and that it negligently or purposely refrained from ascertaining the provisions of the conditional bill of sale.
The demurrer of the defendant deputy sheriff to the complaint is sustained.
Section 4699 of the General Statutes, Revision of 1930, which declares that conditional sales of personal property not made in conformity with that section of the statutes governing the execution, acknowledgment and filing of conditional sales contracts, shall be held to be absolute sales, and that such property shall be liable to be taken by attachment and execution for the debts of the vendee, is not inapplicable to one who does not rely in extending credit on the absolute ownership by the conditional vendee of the particular property which is the subject of a defective or unfiled conditional bill of sale.
An attaching creditor may attach property sold under an unfiled conditional bill of sale notwithstanding that he has actual knowledge of the conditional bill of sale and of its terms prior to the attachment.
A demurrer identical with that of the defendant deputy sheriff has been filed by one as trustee in bankruptcy of the defendant conditional vendee. The trustee's petition to intervene as a party defendant was granted, but the order did not provide for his substitution as a party defendant for the conditional vendee, and the amended complaint did not purport to state any cause of action against the trustee. The trustee's demurrer to the complaint is required to be overruled, since no cause of action is attempted to be alleged against him.
Where assignee of conditional sales contract brought action in replevin against buyer, against a deputy sheriff who attached the personalty in an action on indebtedness arising before sale, and against the attaching creditor, but no cause of action was stated against trustee in bankruptcy of the buyer although trustee was permitted to intervene as a party defendant without substitution for the buyer, court could not consider trustee's demurrer to the complaint.
David R. Lesser, of Bridgeport, for the Plaintiff.
Milton Hausman; J. Walter Scheffer; Willis, Foster & Lister ; of Bridgeport, and Bernard Greenberg, of New Haven, for the Defendants.
Memorandum of decision on defendants' demurrers.
The plaintiff is the assignee of the conditional vendor of a station wagon sold to the defendant Wenstrom and attached by the defendant Abbott, a deputy sheriff, in an action on an indebtedness arising before the sale of the station wagon to Wenstrom. The assignment to the plaintiff, as well as the sale to Wenstrom, took place on March 7, 1940. The attaching creditor attached the car on May 22, 1940, obtained judgment July 5, 1940, execution was issued upon the judgment July 19 1940, but the plaintiff, in this action, replevied the car on August 2, 1940, thereby preventing the execution sale. The conditional sales contract was for the first time filed on May 27, 1940.
In paragraph 9 the plaintiff alleges that it failed to file the " conditional sales contract through neglect oversight or other cause." This language is broad enough to include a grossly negligent or even an intentional failure to file. At best, it is impossible to construe it as necessarily limited to failure to file due solely to mere negligence.
In paragraph 13, with some inconsistency, it is alleged that the attaching creditor had personal notice and knowledge of the conditional bill of sale and of its provisions, prior to May 22, 1940, and also that it negligently or purposely refrained from ascertaining the provisions of the conditional bill of sale, of the existence of which it had constructive knowledge. It is important to notice that there is no allegation that the attaching creditor had knowledge or notice, personal, constructive or otherwise, of the existence of the conditional bill of sale nor of its provisions, until long after the indebtedness sued upon had been contracted by Wenstrom. On the contrary, the indebtedness arose prior to March 1, 1940, while the conditional bill of sale did not come into existence until March 7, 1940.
Paragraphs 14 and 15, and in large part paragraph 12, are made up of claims of law regarding our conditional sales act, including some of the same theories recently rejected in Standard Acceptance Corp. v. Connor, 127 Conn. 199. The demurrer admits such facts as are well pleaded but does not admit those allegations which are merely conclusions of law. Woodruff v. New York & New England R.R. Co., 59 Conn. 63, 89.
Under section 4697 of the General Statutes, Revision of 1930, a conditional bill of sale must be " filed within a reasonable time in the town clerk's office in the town where the vendee resides." Section 4699 of the General Statutes, Revision of 1930, provides that " all conditional sales .... not made in conformity with the provisions of section 4697 .... shall be held to be absolute sales .... and all such property shall be liable to be taken by attachment and execution for the debts of the vendee in the same manner as any other property not exempted by law from attachment and execution." The defendants claim that as matter of law the filing was not within a reasonable time. While ordinarily, in any given case, what would be a reasonable time within which to file a conditional bill of sale is a question of fact, and, so, could not be determined upon demurrer, yet in this case it appears from the conditional bill of sale itself that the seller's place of business was Bridgeport, that of the plaintiff-assignee was New York City, and that the buyer's residence was in Fairfield. Under these circumstances a delay of nearly three months in filing is unreasonable as matter of law. Lloyd & Elliott, Inc. v. Parke, 114 Conn. 12, 14; Camp v. Thatcher Co., 75 Id. 165, 169; Bay City Shovels, Inc. v. Roach, 2 Conn. Sup. 19, 21. Furthermore, the plaintiff makes no claim in its brief that the bill of sale was filed within a reasonable time.
The plaintiff claims that the provisions of section 4699 should be construed so as not to apply to any one who does not rely in extending credit on the absolute ownership by the conditional vendee of the particular property which is the subject matter of a defective or unfiled conditional bill of sale.
The mere statement of the proposition demonstrates its unfairness, together with its utter inconsistency with the provisions of section 4699 of the General Statutes. However, if authority were needed, it is to be found in Standard Acceptance Corp. v. Connor, supra, 204. While the direct authority of Standard Acceptance Corp. v. Connor, is conclusive, against the plaintiff, on its claim that a conditional bill of sale is good in any event against all those not actually misled by its failure to meet the statutory requirements, the plaintiff claims such a rule is unfair and inequitable. This is far from the case. Indeed, our Supreme Court has consistently construed the conditional sales statute in a manner in harmony both with the expressed intention of the General Assembly and with sound considerations of natural justice and equity. Such a construction is almost inevitable since our legislation is outstanding in the protection it affords to all conditional vendors who take the trouble to comply with its simple requirements.
The inequity of the plaintiff's position is especially apparent in a case, such as this, where the subject matter of the purported conditional sale is an automobile. It is common knowledge that a very large percentage of purchasers of automobiles trade in another car at each purchase. Under the plaintiff's theory, however much a creditor relied on the value and ownership of the old car in extending credit, and however carefully he checked the personal property records to make sure of the debtor's title and that any installment payments had been completed, if he extended credit before the debtor changed cars, the debtor's purchase of the new car would leave the creditor helpless, regardless of whether the conditional bill of sale of the new car was filed or not, or whether it was defective or not, since no credit would have been extended in reliance on the ownership of the new car. In such cases, according to the plaintiff's view, filing would be of no moment....
To continue reading
Request your trial