C. I. T. Corp. v. Cohen

• Decision Date: 27 June 1933
• Court: Connecticut Supreme Court
• Parties: C. I. T. CORPORATION v. COHEN et al.

167 A. 102

117 Conn. 159

C. I. T. CORPORATION v. COHEN et al.

Supreme Court of Errors of Connecticut.

June 27, 1933

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Action of replevin by the C. I. T. Corporation against Samuel Cohen and one Alderman, who filed a counterclaim. From a judgment for defendant Alderman after trial to the court, plaintiff appeals.

Error and cause remanded, with instruction.

T Holmes Bracken and Maxwell H. Goldstein, both of New Haven, for appellant.

Maxwell A. Alderman and Isadore Chaplowe, both of New Haven, for appellee Alderman.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY, JJ.

BANKS Judge.

This is a replevin action to recover possession of a De Soto automobile, title to which the plaintiff claimed by virtue of an assignment to it of a conditional sales contract in which Whalley Motors, Inc., was the conditional vendor and the defendant Samuel Cohen the conditional vendee. The automobile was replevied from the possession of the defendant Alderman, a constable of the town of New Haven, who held it by virtue of an attachment in an action against Bessie Cohen. The defendant Samuel Cohen defaulted, and the court rendered judgment for the return of the automobile to the defendant Alderman upon his counterclaim.

On October 6, 1931, the Whalley Motors, Inc., owned the automobile which is the subject-matter of this action, and on that date a conditional sales contract of the same was executed by Samuel Cohen as conditional vendee. A Chrysler car which Cohen had bought under a conditional bill of sale was taken in part payment and installment notes given by him for the balance of the purchase price. The conditional sales contract and the notes were assigned by Whalley Motors, Inc., to the plaintiff. The invoice of the car was issued in the name of Bessie Cohen, mother of Samuel Cohen, and the ledger account carried in her name. The car was registered in her name and taxed as her property. On November 1, 1932, Alderman attached it as her property, relying on the fact that it was registered in her name and kept at 56 Daggett street, New Haven, where she and her son Samuel Cohen both lived. The conditional sales contract was not acknowledged as required by law and was not recorded until November 2, 1932. All the notes given by Samuel Cohen which had matured prior to the date of the attachment were paid, but the note due November 6, 1932, was defaulted, and the car was replevied by the plaintiff on November 14, 1932.

The answer and counterclaim of the defendant Alderman alleged that the car, at the time he attached it, was the property of Bessie Cohen. This was denied in the plaintiff's reply. The decisive issue in the case was whether or not Bessie Cohen had an attachable interest in the car. If she did, the attachment created a lien superior to any rights of the plaintiff under the unacknowledged and unrecorded conditional sales contract. The court has not expressly found who was the owner of the car at the time it was attached. It did find, in addition to the facts above recited, that Samuel Cohen testified that he purchased the car, was the conditional owner thereof, and that he caused it to be registered in his mother's name to evade the law which required him, since he had had an accident with a car previously, to furnish a certificate of financial responsibility or insurance against public liability. This statement has no place in the finding which should state facts and not testimony. Blanton v. Wheeler & Howes Co., 91 Conn. 226, 99 A. 494, Ann.Cas. 1918B, 747. It is not a finding that Samuel Cohen was the conditional owner of the car, or of the reason why he had it registered in his mother's name. It is, however, made the basis of the further finding by the court that Cohen is estopped to deny his mother's ownership of the car and the fact that she had an attachable interest in it. That is a finding of an immaterial fact. The plaintiff does not derive its title through Samuel Cohen, and no facts are found which would estop it to deny the ownership of Bessie Cohen.

Though the court fails to find directly the ultimate fact as to the ownership of the car, its conclusions appear to be based upon the assumption that Samuel Cohen was in fact the conditional vendee of the car. It concludes that, notwithstanding that fact, the plaintiff was not entitled to possession of the car for two reasons: (1) Because its right was based upon an...