Cont'l Credit Co. v. Ely

• Decision Date: 14 March 1917
• Court: Connecticut Supreme Court
• Parties: CONTINENTAL CREDIT CO. v. ELY.

100 A. 434

91 Conn. 553

CONTINENTAL CREDIT CO.

v. ELY.

Supreme Court of Errors of Connecticut.

March 14, 1917.

Appeal from Superior Court, Hartford County; Joseph P. Tuttle, Judge.

Action by the Continental Credit Company against Caroline I. Ely. Judgment for plaintiff, and defendant appeals. Affirmed.

The finding recites that the defendant entered into a contract on May 17, 1913, with Tomlinson-Humes, Incorporated, of Chicago, by which it agreed to go over all of Mrs. Ely's (defendant's) pictures, mezzotints, and prints, and to clean and repair all pictures in her house in Washington, D. C, and to authenticate through its expert, Thurber, all original paintings and engravings in her collection, and furnish' her with an estimate of their value, and the defendant agreed "to make payment for such work as is contemplated and specified above" the sum of $3,000; and in payment defendant delivered to Tomlinson-Humes, Incorporated, three notes, for $1,000 each, without interest, payable in 3, 4, and 6 months from date, respectively. Tomlinson-Humes, Incorporated, never carried out its agreement, but it was not requested to perform, and there was no evidence that it did not intend to carry out its agreement in good faith at the time it was made and at all times. Tomlinson-Humes, Incorporated, was adjudged bankrupt on July 30, 1913.

It was a part of the agreement that the work of cleaning and restoration should not be done until about July 1, 1913. On June 3d, 16 days after the delivery of the notes to Tomlinson-Humes, Incorporated, it sold and delivered the notes to plaintiff under an existing agreement between it and the plaintiff, Credit Company, by which the parties agreed to buy the accounts belonging to Tomlinson-Humes, Incorporated, and to pay therefor from 98 per cent. to 78 per cent. of their face value, depending upon the time in which the accounts were paid, paying 65 per cent. of the face value upon acceptance by the Credit Company and the balance upon payments of said accounts to it to Tomlinson-Humes, Incorporated. Tomlinson-Humes, Incorporated, guaranteed payment of the accounts and the payment of all expenses incurred in collecting accounts in default, and agreed to assign to the Credit Company the accounts purchased by it, to the end that it might be subrogated to all of the rights possessed by Tomlinson-Humes, Incorporated. The Credit Company had the right to appropriate deferred payments collected by it on one account to the payment of amounts due it by Tomlinson-Humes, Incorporated, on other accounts.

Under the agreement as to payment of these three notes the Credit Company charged as discount $149.90, paid by check $1,511.54, and credited $745.56 upon the indebted ness of Tomlinson-Humes, Incorporated, on other accounts held by the Credit Company, leaving a balance between these sums and the face of the notes of $600, called a deferred payment, which upon collection was to be turned over to Tomlinson-Humes, Incorporated, or credited upon its debt to the Credit Company.

The plaintiff, Credit Company, has owned and had possession of these notes since their delivery to it, and duly presented them for payment, but they have never been paid. Tomlinson-Humes, Incorporated, has never fulfilled its guaranty, and plaintiff is still the actual bona fide holder and owner of these notes.

Walter S. Schutz and Charles Edgar Blake, both of Hartford, for appellant. Terry J. Chapin, of Hartford, for appellee.

WHEELER, J. (after stating the facts as above). The assignments of error pressed are the following: (1) The refusal to correct and add to the finding. (2) The sustaining of the demurrer to defendant's motion for a disclosure. (3) The denial of defendant's motion for a stay of proceedings. (4) The holding as matter of law that plaintiff was a bona fide purchaser for value of these notes, and the failure to hold that plaintiff took the notes as collateral security for an usurious loan. (5) The failure to hold that defendant can avail herself of the defense of usury, and of the defenses of fraud and lack of consideration. (6) And in any event holding that plaintiff could recover more than the sum advanced by plaintiff, with interest from date of advancement.

The motion for a stay of proceedings pre ceding the trial presented reasons of weight in its support, among them that the account between plaintiff and Tomlinson-Humes, Incorporated, bankrupt, covered many items, including the notes in question, and that the account has been greatly reduced since bankruptcy, and that the amount now due is uncertain, and when this account is paid, as sets, including these notes, will be turned over to the trustee in bankruptcy, and until this account is settled it will be impossible to determine what amount remains due the plaintiff upon these notes, and that the books and papers of the account of both parties are out of the jurisdiction and available to the bankruptcy court in Illinois. Had these and the other facts alleged been found true, the trial court might very properly have exercised its discretion and granted the motion for a reasonable period of time. However, the record does not recite the establishment of these facts. On the contrary, the ruling denying the motion without prejudice to the right to renew it during the trial indicates that the facts had not been sufficiently established. The record does not show that this motion was renewed. The court's finding that the facts recited in the motion were not proved upon the trial is immaterial to the decision of this motion, for that depended upon their proof when the motion was heard. So far as appears, the ruling was not erroneous.

As to the corrections and additions to the finding: The defendant desires added to the finding that the method of authentication was impossible of performance, and the authentication was made with intent to deceive and was a principal inducement to Mrs. Ely in making the contract. Mrs. Ely did not testify that the authentication was an inducement to the contract and there was no evidence from which this could have been found. There was, too, no evidence that this was impossible, and we do not conceive it to have been a subject for judicial notice. There was, too, no evidence of the value of the work to be done in cleaning and restoring the pictures, etc., nor of the proportion of the value of this work to the amount of the contract. This condition of the evidence made it impossible to have made the finding asked for.

The finding that the choses in action transferred by Tomlinson-Humes, Incorporated, are all past due and unpaid and of little value, and that at no time since June 3, 1913, would the full payment of the notes have been sufficient to...