Baker v. Brown & Thomas Auto Co.

• Decision Date: 01 December 1924
• Citation: 101 Conn. 575,126 A. 703
• Parties: BAKER v. BROWN & THOMAS AUTO CO.
• Court: Connecticut Supreme Court

126 A. 703

101 Conn. 575

BAKER v. BROWN & THOMAS AUTO CO.

Supreme Court of Errors of Connecticut.

December 1, 1924

Appeal from Court of Common Pleas, New Haven County; Earnest C Simpson, Judge.

Action by Thomas B. Baker against the Brown & Thomas Auto Company. Verdict for plaintiff set aside, and he appeals. Error, and judgment set aside with direction to render judgment on verdict.

The jury might have reasonably found the following facts:

Plaintiff and defendant entered into a contract which recited that defendant placed in the hands of plaintiff an automobile under an agreement of plaintiff to pay $1,675, payable $50 in cash, and $750 on a touring car for which credit on the purchase price was given to the defendant, and the balance $875, payable in 9 notes at varying times in consideration of the agreement of defendant that when the balance of $875 had been fully paid the automobile should become the property of plaintiff, and until this balance was fully paid the title to the automobile should remain in defendant; and upon default of plaintiff in any payment defendant should have the right to take possession of it and all payments previously made and all rights of plaintiff in it should thereupon be forfeited. Defendant never made delivery of the automobile to plaintiff but at all times retained it in its possession and control. At the time of the execution of this written agreement, defendant orally informed plaintiff that the automobile would not be delivered to him until the note, which became due April 28, 1923, was paid and plaintiff consented to this, and it thereupon became a part of the agreement of sale between the parties in reference to the automobile. On or about February 18, 1923 the automobile, while in the possession of defendant, was destroyed by fire.

Defendant had this car insured and sold the remains of the automobile as junk. Defendant notified the plaintiff after the fire that it could not make delivery of the automobile as agreed and that plaintiff need not make any further payments on the remaining unpaid notes given in consideration of the purchase price. The parties further agreed that plaintiff should pay storage of $5 a month on the car and he had paid two months storage prior to the fire. On two occasions he had done some slight work on this car and once he had used it with defendant's permission. The keys to the defendant's garage and for this automobile remained continuously in the possession and control of defendant.

David M. Reilly and Frank W. Daley, both of New Haven, for appellant.

Walter J. Walsh, of New Haven, for appellee.

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

WHEELER, C.J. (after stating the facts as above).

The controversy of fact between the plaintiff buyer and the defendant seller turned upon the point as to whether there had been a delivery of the automobile to the plaintiff, and whether the seller after delivery retained possession with the consent of the buyer for the purpose of securing himself for the payment of the same. Both of these issues of fact the jury must have found unestablished and hence in favor of the plaintiff. We have then, upon the facts, an executory sale of this automobile, neither title nor possession having passed to the buyer from the seller. Under these circumstances the automobile remained at the risk of the defendant seller.

Had the sale been an absolute one, title to the automobile having passed to the buyer, whether the possession were in the buyer or not, the loss would have been on the buyer if it had been destroyed by fire subsequent to the sale. General Statutes, § 4688. Had the sale been a conditional one with delivery to the buyer, but the title remaining in the seller until the performance of certain conditions, the seller would hold the title as security for the purchase price and, in the event of the destruction by fire of the automobile, the loss would have been the buyer's, since delivery gave him the use of and dominion over the automobile. General Statutes, § 4688, subd. (a); 1 Williston on Sales (2d Ed.) p. 698.

But where there is no absolute sale and neither title in the automobile nor possession has passed but there is merely an agreement to sell and to deliver at some future time, it is merely an executory agreement of sale, conditioned upon performance of named conditions. The destruction of the automobile rendered the performance of defendant's agreement to deliver in the future an impossibility, and even...