Cohen v. Elm City Mfg. Co.

• Citation: 40 A. 455,70 Conn. 505
• Parties: COHEN v. ELM CITY MFG. CO. et al.
• Decision Date: 01 June 1898
• Court: Supreme Court of Connecticut

40 A. 455

70 Conn. 505

COHEN

v. ELM CITY MFG. CO. et al.

Supreme Court of Errors of Connecticut.

June 1, 1898.

Appeal from common pleas court New Haven county; John P. Studley, Judge.

Replevin by Nathan Cohen against the Elm City Manufacturing Company and others. From a judgment of nonsuit, plaintiff appeals. Reversed.

The complaint alleged that ever since the 9th day of July, 1897, the defendants August L. Schneider, doing business under the name of the Elm City Manufacturing Company, and Peter J. McNerney, had unlawfully detained from the plaintiff one soda water fountain, one ice cream machine, eleven ice cream cans, and fourteen ice cream tubs, of the value of $150, the property of the plaintiff, and of which the plaintiff on said day was, and ever since has been, entitled to the immediate possession. The answer was a general denial and a special answer, alleging in substance that on the 8th day of July, 1897, Michael Tovorovsky, of New Haven, was indebted to August L. Schneider, one of the defendants, in the sum of $79.95; that on said day the other defendant, McNerney, a constable of New Haven, under a writ which Schneider had caused to be issued against said Tovorovsky for the purpose of collecting said debt, attached said goods; that they were replevied by the plaintiff while so held under attachment; that said goods were the property of Tovorovsky at the time of the attachment, and not of the present plaintiff, Cohen; but that Cohen, conspiring and agreeing with his son-in-law, Tovorovsky, to defraud the said Schneider, and prevent him from collecting his said debt, now claims to be the owner of said goods so attached. The plaintiff's reply denied the allegations of the special answer that Tovorovsky was indebted to Schneider; that the goods belonged to Tovorovsky at the time of the attachment; and that Cohen and Tovorovsky had entered into an agreement for the purpose of defrauding Schneider.

In presenting his case in chief, the following instruments, which were marked, respectively, Plaintiff's Exhibits A and B, were offered and received with evidence that both said instruments were executed and delivered on the 24th of June, 1897, as parts of one transaction, and that Exhibit B was witnessed and duly acknowledged and recorded on the 25th of June, 1897:

"Plaintiff's Exhibit A.

"In consideration of one dollar and other valuable consideration received to my full satisfaction of Nathan Cohen, of the town of New Haven, I hereby sell, transfer, assign, and give over unto said Nathan Cohen the following articles of personal property, to wit: 1 safe, 1 soda-water fountain, 1 ice cream making machine, with 27 cans with tubs, 1 hose, 1 candy stove, 1 drop machine, 1 roller, 1 marble slab, 1 copper boiler, 1 warmer, 4 knives, 1 horse and harness, and 1 cocoanut scraper, to have and to hold the same to his own use forever, and to the use of his heirs and assigns. And I hereby guaranty that I have good right to sell the same as aforesaid, and that I will defend the above to him against all persons whatsoever. In witness whereof, I have hereunto set my hand and seal this 24th day of June, 1897, New Haven, Connecticut. Michael Tovorovsky. [L. S.] "In presence of Isadore A. Stein."

"Plaintiff's Exhibit B.

"This agreement, entered into this twenty-fourth day of June, 1897, between Nathan Cohen and Michael Tovorovsky, both of the town of New Haven, witnesseth: That said Cohen hereby releases to said Tovorovsky the following articles of personal property, to wit: 1 safe, 1 soda-water fountain, 1 ice cream making machine, with 27 cans with tubs, 1 hose, 1 candy stove, 1 drop machine, 1 roller, 1 marble slab, 1 copper boiler, 1 warmer, 4 knives, 1 horse and harness, and 1 cocoanut scraper, for the term of three months and six days, or until October 1st. 1897, for the rental price of one hundred and fifty dollars, payable on the first day of October, 1897. In consideration of the above, said Tovorovsky agrees to take proper care of said above-described property, and to do all the repairing that may be necessary to do to keep the same in good order. It is hereby agreed between the contracting parties that if said Tovorovsky shall pay to said Cohen the sum of one hundred and fifty dollars, as aforesaid, to wit, on October 1st, 1897, then the above-described property shall remain the property of said Tovorovsky, and said Cohen shall give him a bill of sale for the same. In witness whereof, we have hereunto set our hands and seals, the date above written. Nathan Cohen. [L. S.] M. Tovorovsky. [L. S.]

"Isadore Stein. Louis Coleman.

"County of New Haven—ss.: New Haven, June 24th, 1897. Personally appeared Nathan Cohen and Michael Tovorovsky, signers and sealers of the above, and acknowledged the above to be their free act and deed, before me, Isadore A. Stein, Justice of the Peace."

The only witnesses called for the plaintiff were the plaintiff, Nathan Cohen, and his son-in-law, the said Michael Tovorovsky. These witnesses testified that the consideration of the sale to the plaintiff was a previous indebtedness of Tovorovsky to Cohen of $25, and $100 in cash paid by Cohen to Tovorovsky on the day of the transaction; that the goods were in the cellar of the building where Tovorovsky carried on the ice-cream and soda-water business; and that the plaintiff there examined them; and that, after the execution of...