Cavanagh v. Marble

• Decision Date: 03 March 1908
• Citation: 80 Conn. 389,68 A. 853
• Court: Connecticut Supreme Court
• Parties: CAVANAGH et al. v. MARBLE.

68 A. 853

80 Conn. 389

CAVANAGH et al.

v. MARBLE.

Supreme Court of Errors of Connecticut.

March 3, 1908.

Appeal from Superior Court, Litchfield County; Howard J. Curtis, Judge.

Replevin by James F. Cavanagh and others against Frank P. Marble to recover possession of three horses which defendant, as deputy sheriff, had attached as the property of a third party. Judgment for defendant, and plaintiffs appeal. Affirmed.

W. G. Manchester and F. W. Etheridge, for appellants. W. B. Smith and F. B. Munn. for appellee.

THAYER, J. The defendant, as appears by the finding, claimed to hold the horses in question as deputy sheriff upon a writ of attachment against J. R. Lucier and others, doing business as Lucier's Minstrels. The minstrels had purchased the horses of the plaintiffs in Manchester, N. H., upon a conditional bill of sale, under which the title was not to pass until the purchase price evidenced by a note for $742.50 was fully paid in weekly installments of $50 each. Three weeks after this purchase the plaintiffs sold to the same parties two other horses for $500, and received in payment a note for that amount, payable with interest, on demand after date at the plaintiff's stables in Manchester. This note was secured by a chattel mortgage of the two horses then purchased and four other horses. It was stipulated that the horses conditionally purchased should not be taken out of Hillsborough county, N. H., without the consent of the plaintiffs; but they were soon taken into Massachusetts, and later into Connecticut, without the consent or permission of the plaintiffs. After the removal of the horses from New Hampshire the plaintiffs had knowledge of the fact, and made no effort to have them returned. The conditional bill of sale of the horses here in question was dated May 1, 1905. On May 9, 1905, the minstrels made a payment to the plaintiffs of $50, and thereafter continued to make payments from time to time, at first of $50 weekly and later $25, until November 4, 1905, when the full amount of said conditional sale had been paid. These payments, with the exception of the first one or two, were sent by check or money order from the town where the minstrels were showing at the time, and no directions were given as to their application. It is found that the minstrels intended that these payments should be applied to the note for $742.50, and that the circumstances surrounding the two transactions between the parties to the two notes were such that they indicated to the plaintiffs, and raised a fair presumption that the minstrels intended the payments to be so applied, and that they formally so declared in a letter written later to the plaintiffs and received by them prior to the bringing of this action, and before the horses were attached by the defendant. The plaintiffs on the trial produced the two notes in evidence, and it appeared on inspection of the same that some of the aforesaid payments were indorsed upon the $742.50 note and some upon the $500 note, thus leaving an apparent balance due to the plaintiffs...