Crompton v. Beach

• Decision Date: 01 April 1892
• Citation: 25 A. 446,62 Conn. 25
• Court: Connecticut Supreme Court
• Parties: CROMPTON v. BEACH.

25 A. 446

62 Conn. 25

CROMPTON

v. BEACH.

Supreme Court of Errors of Connecticut.

April 1, 1892.

Appeal from superior court, Hartford county; Robinson, Judge.

Action by Mary C. Crompton against George Beach to replevy certain machinery alleged to be unlawfully detained by defendant. From a judgment for defendant, plaintiff appeals. Affirmed.

F. Chiniberlin and E. S. White, for appellant, cited, in support of the proposition that until payment of the judgment on the note given for the property the other remedy was not barred, Drake v. Mitchell, 3 East, 251; Lord v. Bigelow, 124 Mass. 185; Vanuxem v. Burr, 151 Mass. 386, 24 N. E. Rep. 773. Plaintiff was entitled to the loans, in any view of the contract. Child v. Allen, 33 Vt. 476; Matthews v. Lucia, 55 Vt. 308.

H. C. Robinson and L. F. Robinson, for appellee.

FKNN, J. The present contention grows out of the same contract which was considered by the court in Beach's Appeal, 58 Conn. 464, 20 Atl. Rep. 475, and the facts therein stated are applicable to this case, but need not be repeated here. Under the authority of that decision the plaintiff, as administratrix of George Crompton, having secured a dividend of 25 per cent. from the insolvent estate of the Home Woolen Mills Company, brought the present action of replevin for the property against the defendant, who is the trustee in insolvency of said company; and the sole question for our decision is the one considered, but not determined, by the court in the former case, whether the vendor, having elected to enforce the claim upon the note, could at the same time retain the right to retake the machinery if the note was not fully paid. The superior court held that such right could not be retained, and rendered judgment in favor of the defendant for the return of the property, with damages for the replevin and detention, and the plaintiff appealed.

The contract appears in full in the former case, (58 Conn. 465, 20 Atl. Rep. 475,) but we will repeat the closing paragraph, which is that, upon default, the vendor "shall have the right, at any time, to resume possession of the machinery, and to enter the premises and remove the same as his own property; and if any portion of said note, or renewals thereof, shall remain unpaid, when possession shall be so taken by the party of the first part or his authorized agent, then the amount which may have been paid shall be for the use of said machinery while in possession of the party of the second part, and said note shall then be canceled and given up." It is the present claim of the plaintiff that, although by reason of the express stipulation, after possession had been resumed, no further right to recover the purchase price would exist, yet, by resorting to her remedies in the order in fact taken, both the remedy by collection and that by resumption were open to her. The argument in favor of such claim appears to be threefold: First. That the default of the vendee did not operate as a rescission of the contract; that the rights of the vendor survived such default; and that the rights of the parties thereafter existing were to be determined, not alone by the ordinary methods furnished by the law, but by those and such other proceedings as were expressly provided in the agreement itself, namely, that, until the vendor exercised his right to resume possession, "the amount which might have been paid should be for the use of the machinery." Second. That in this case the remedies provided by the law and the agreement of the parties are cumulative and collateral, and that each, except as limited in their order by the contract, might be pursued independently, until full satisfaction resulted. Third. That the vendor had, under the contract, a lien upon the property, which was in effect a mortgage, and was entitled to the same relief as if the title had been transferred and reconveyed for security. We will consider each of these claims separately. In reference to the first, that the default of the vendee did not operate as a rescission of the contract, it is true, and constitutes the basis of the decision in the former case of Beach's Appeal. But it must be manifest to any one who examines that case that this court did not then attribute to such facts the consequences which the plaintiff now asserts. Indeed, it is very evident that, while leaving the question now at issue in form undecided, the minds of both the majority and minority of the court were strongly opposed to the plaintiff's present position. This the plaintiff concedes, and a considerable portion of the brief presented in her behalf, and of the oral arguments based thereon, was devoted to an effort to explain how this court was led into its "apparent error," which error is said to have consisted in "presuming that the case of Bailey v Hervey," 135 Mass. 172, cited In 58 Conn 480, 20 Atl. Rep. 478, "was based on a contract similar, in effect, to the one under consideration," and therefore, as Judge Loomis said in the former opinion, "directly in point." The plaintiff says that, in fact, the contract in Bailey v. Hervey differed from the one now under consideration, and was, in effect, the same as in Hine v. Roberts, 48 Conn. 267, followed by Loomis v. Bragg, 50 Conn. 228, in which the vendor's only remedy was held by this court to be the retaking of the property. To demonstrate this, since it does not appear in the reported case, the plaintiff's counsel have been at the exceptional pains of procuring what is stated to be an exact copy of the actual contract construed in Bailey v. Hervey, and have caused the same to be printed in full for our examination at the end of their brief. The argument is that such contract would not have been construed in Connecticut as it was in Massachusetts, as conferring an option upon the vendor; that the assumption on which the opinion is conditioned is directly negatived by the law of this court as declared in Loomis v. Bragg, "a decision not then published, and doubtless unknown to Justice Allen ;" and that, therefore, the case is erroneous, and should have been decided upon other and better grounds, by which the same result might have been reached, and should not have been recognized as an authority by this court. Conceding this, forargument's sake only, we fail to see how it in any wise affects what Judge Loomis declares to be "the clear and cogent reasoning contained in the opinion cited ;" for the Massachusetts court having, whether correctly...