Collins v. Lewis

• Decision Date: 31 March 1930
• Citation: 149 A. 668,111 Conn. 299
• Court: Connecticut Supreme Court
• Parties: COLLINS v. LEWIS.

149 A. 668

111 Conn. 299

COLLINS v. LEWIS.

Supreme Court of Errors of Connecticut.

March 31, 1930

Appeal from Superior Court, Windham County; Edward M. Yeomans Judge.

Action by Harvey T. Collins against Byron M. Lewis for the care and keep of certain cows. Judgment was entered for the plaintiff on trial to the court, and defendant appeals.

No error.

Elbert L. Darbie, of Danielson, for appellant.

John B. Harvey, of Willimantic, for appellee.

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

HAINES, J.

The uncontested finding of facts shows that the plaintiff, a deputy sheriff, on July 14, 1923, served three writs on Charles Kinne of South Coventry, and attached ten cows which he found in the possession of Kinne, and removed them to the farm of Thomas Welles, a short distance from Kinne's home, where the plaintiff kept them a few days and then removed them to the farm of Archie Berkowitz in the town of Columbia. The plaintiff made a return of one of the writs but the other two were not returned to court. The day after the service of the writ the plaintiff for the first time learned that the cows were the property of the defendant Lewis, and that Kinne had the possession of them at the time of the attachment under a conditional sale contract with Lewis, which was on record in the town clerk's office at Coventry. On July 17th, three days after the attachment of the cows, the wife of the defendant, Lewis, informed the plaintiff by telephone of the conditional bill of sale and of the amount due thereon. At this or one other conversation by telephone the plaintiff offered to return the cows either to Kinne or to the defendant Lewis, but was informed that the former was leaving his place and would not take them and that the defendant, Lewis, would not take them " at that time." A few days later the plaintiff took the cows to Kinne's place but he refused them, and the landlady refused to have them on the place. The plaintiff returned the cows to Berkowitz's place and later telephoned to Lewis and offered to deliver them to the latter's farm in East Killingly, but was told there was no place for them there " at that time." The following day, July 18th, the plaintiff, through his attorney, notified Lewis by letter that he was holding the cows for Lewis, and would look to him for the cost of their keep. Late in August Lewis went with the plaintiff to look at the cows, and told the plaintiff he was going to sell them. Two or three days afterward Lewis sold the cows and they were removed by an agent of the purchaser, Lewis signing a receipt for them and delivering it to the plaintiff. The cows had been boarded at the Berkowitz's farm for thirty-eight days, and a reasonable charge therefor was $190. The plaintiff took for granted that he would be paid by Lewis for the board of the cows, but at no time was there any mention made of it by Lewis nor any express agreement between the plaintiff and Lewis in regard to it. The plaintiff was at all times ready, able, and willing to deliver the cows to Lewis. In the plaintiff's reply to defendant's answer, it is alleged that, on July 16th, upon the discovery of the conditional bill of sale, the plaintiff " thereupon released the attachment of said cows." In his rejoinder, the defendant pleaded no knowledge. The release of the attachment does not appear in the finding as a fact found, but the judgment recites that the issues under the pleadings were found for the plaintiff and there is apparently nothing in the record to the contrary. The plaintiff treats this release as an established fact. Whether this may be done under the authority of Practice Book, page 299, § 240; Hatch v. Thompson, 67 Conn. 74, 76, 34 A. 770; Wilson v. Cheshire Brass Co., 88 Conn. 118, 122, 89 A. 903, we do not decide.

The trial court reached the conclusion that the cows were lawfully attached; that the plaintiff had done all that by law he was required to do in trying to return them to Lewis; that there was an implied promise on the part of Lewis to pay their board, and that $190 was a reasonable price therefor. All these conclusions save the last are contested upon this appeal. Plaintiff's letter was answered by telephone by defendant's attorney, Arthur G. Bill, whose testimony was excluded, and this is assigned as error.

First, as to the validity of the attachment. It is the claim of the defendant that the attachment was a trespass, and in support of that claim he cites Lester v. Ladrigan, 90 Conn. 570, 98 A. 124, L.R.A. 1916F, 939. In that case, a truck was attached as the property of M, but the court found that M " never owned it." In the present case, the vendee, Kinne, under the conditional bill of sale, was the equitable owner of the cows, while the legal title was in the vendor, Lewis. This equitable interest of Kinne was an attachable interest and the attachment was properly made by the plaintiff by taking the cows into his possession, and the legality of that action is not affected by any erroneous view the officer may have had as to the extent of Kinne's interest. General Statutes, § 5870; Mack v. Story, 57 Conn. 407, 18 A. 707; Beach's Appeal, 58 Conn. 464, 473, 20 A. 475; Pearne v. Coyne, 79 Conn. 570, 65 A. 973; Smith v. Gilbert, 71 Conn. 149, 154, 41 A. 284, 71 Am.St.Rep. 163; Cohen v. Schneider, 70 Conn. 505, 40 A. 455.

By this means the creditor obtained a valid attachment of the interest of Kinne as conditional vendee, and he held the cows thereafter subject to the rights of the conditional vendor exactly as Kinne had held them before the attachment. So long as the attachment remained in force, the creditor stood in the shoes of the conditional vendee, as regards the vendor. Cavanaugh v. Marble, 80 Conn. 389, 391, 68 A. 853, 15 L.R.A. (N. S.) 127.

The attachment was made, and the cows taken by the plaintiff, as deputy sheriff, on July 14th. Upon discovering on the 16th that the legal title was not in Kinne, he forthwith tendered the cows to Kinne who refused to receive them. The circumstances show that Kinne thus abandoned his interest in the cows. Abandonment comprehends both the intent to abandon, and the external act by which that intent is carried into effect. American Brass Co. v. Serra, 104 Conn. 139, 148, 132 A. 565; Stueck v. G. C. Murphy Co., 107 Conn. 656, 662, 142 A. 301; Peck v. Lee, 110 Conn. 374, 377, 148 A. 133; Eads v. Brazelton, 22 Ark. 499, 509, 79 Am.Dec. 88; Judson v. Malloy, 40 Cal. 299.

While abandonment is often a question of fact, yet where both requirements are met by facts such as these in this record we are entitled to hold as matter of law that the abandonment by Kinne was clearly established. The fact that Kinne had done this was known to Lewis. From that time forth, the only interest in the cows was that of Lewis, and, since the plaintiff's tender of the cows to Kinne showed he no longer sought to hold them by attachment, we must treat his possession thereafter as that of an individual only. The defendant, Lewis, was of course then entitled to receive the immediate possession of the cows from the plaintiff, and the possession was in fact so tendered to him by the plaintiff. ...