Finlay v. Swirsky

• Decision Date: 23 December 1925
• Citation: 131 A. 420,103 Conn. 624
• Court: Connecticut Supreme Court
• Parties: FINLAY ET AL. v. SWIRSKY ET AL.

131 A. 420

103 Conn. 624

FINLAY ET AL. v. SWIRSKY ET AL.

Supreme Court of Errors of Connecticut.

December 23, 1925

Appeal from Superior Court, New Haven County; Isaac Wolfe, Judge.

Action by George H. Finlay and others against Isaac Swirsky, Max Swirsky, and others. From a judgment of the superior court for plaintiffs, defendant Max Swirsky appeals. No error.

A sufficient consideration contains the substantial elements of an estoppel in pais.

Benjamin Slade, of New Haven, for appellant.

Frederick H. Wiggin and David L. Daggett, both of New Haven for appellees.

HAINES, J.

An action was brought October 11, 1920, against Isaac Swirsky and Yonas Swirsky, his son, copartners doing business in New Haven under the firm name of I. Swirsky & Son, and certain real estate attached therein as the property of Isaac, and certain personal property consisting of a stock of goods in the store of I. Swirsky & Son was also attached. A judgment was rendered June 2, 1922, for $237,735.30 and costs, and affirmed on appeal. Execution was returned unsatisfied, and on June 2, 1923, the plaintiffs filed a judgment lien against the real estate, which this action seeks to foreclose. On July 6, 1920, the defendant Isaac transferred by quitclaim deed to another son, Max Swirsky, appellant, and one of the defendants herein, all his interest in some of the real estate, but the deed was not recorded until August 20, 1920. On the same day he also transferred to him a bank deposit of about $25,000, and in addition gave him a mortgage on the remainder of his real estate, for $45,000, and on August 19, 1920, gave him a bill of sale of all his interest in the stock of goods in the store, with the credits, good will, and fixtures. On the same day, Max returned to Isaac a power of attorney, giving him full power and authority to manage the business of the store as well as the real estate which had been transferred to Max, and in general, to do all things and to act in all matters in relation to the property " as fully and effectively in all respects as the said Max Swirsky could do if personally present." The transfer of the real estate was therefore made about three months before the attachment, and the transfers of all the properties were complete more than seven weeks before the attachment was made. By these transfers Isaac Swirsky sought to divest himself of all his property.

It is the claim of the plaintiffs in this action that these transfers were fraudulent, designed and made with the intent to hinder, delay, and defraud the plaintiffs in the collection of their claim against Isaac and Yonas Swirsky, and they ask that they be so declared in this action, and that the defendants be required to reconvey the properties and cancel the original assignments. The trial court sustained the claims of the plaintiffs, and Max Swirsky alone appeals from that judgment, and it is his appeal only which is now before us.

The debt claimed by the plaintiffs to be due them from the defendants Isaac and Yonas, and for which judgment was rendered, was based upon two certain writings, appearing in the record as Exhibits I and J, which read as follows:

Exhibit I:

" April 14, 1920.

Messrs. I. Swirsky & Son, New Haven, Conn.: We have this day sold to you four hundred tons (400) white Java sugar, crop 1920/21, at 20 cents per pound duty paid, cost, freight and insurance from Java, including war risk, to New York, for shipment per steamer and/or steamers during July and/or August next at sellers' option. Packed in single bags of about two cwt. net each. The sugar to be invoiced at Java shipping weights, the picul being calculated at 136 lbs. English. Buyers to open a credit with an approved bank or banker to be confirmed immediately at buyers' expense, for an amount sufficient to cover the invoice price of the shipment, together with disbursements and/or advances as per charter party, and the sellers and/or their agents are to draw under the credit in three (3) months' sight drafts, with the relative documents attached, viz. bills of lading, certificate of origin, abstract of invoice, specification of weights and tares, if possible, and in the last instance, charter party, for the due payment of which drafts upon maturity, buyers to remain responsible to drawers. Should delivery be prevented or delayed by war, rebellion, insurrection, political disturbances, civil commotion, strikes, or volcanic eruptions in the island of Java, sellers shall advise buyers of same by cablegram, and the latter shall have the option of canceling the contract for the quantity so prevented or delayed, or of taking the sugar at contract price as soon as it can be delivered. This option to be declared to sellers' representatives in London within five working days of receipt of sellers' cablegram. Any dispute arising out of this contract to be settled by arbitration by London brokers in the usual manner, and this submission may be made a rule of the high court of justice, or any division thereof.

G. H. Finlay & Co.,

F. J. Frum.

Accepted: Isaac Swirsky & Son,

By Isaac Swirsky, Buyer."

Exhibit J:

" April 14, 1920.

Messrs. L. Swirsky & Son, New Haven, Conn.: We have this day sold you four hundred (400) tons white Java sugar, crop 1920, at twenty (20¢ ) cents, per pound, duty paid, cost, freight and insurance from Java, including war risk, to New York, for shipment per steamer or steamers during August and/or September next at sellers' option. Packed in single bags of about 2 cwt. net each. The sugar to be invoiced at Java shipping weights, the picul being calculated at 136 lbs. English. Terms: Irrevocable credit to be opened by buyer in favor of G. H. Finlay & Co., on an approved New York bank immediately; payment to be made against presentation of delivery order here. Should delivery be prevented or delayed by war, rebellion, insurrection, political disturbances, civil commotion, strikes, or volcanic eruptions in the island of Java, sellers shall advise buyers of same by wire and the latter shall have the option of canceling the contract for the quantity so prevented or delayed, or of taking the sugar at contract price as soon as it can be delivered. This option to be declared to sellers' representative within five working days of receipt of sellers' advice. Any dispute arising out of this contract to be settled by arbitration.

G. H. Finlay & Co.,

F. J. Frum.

Buyer: I. Swirsky & Son."

As the appellant correctly says in his brief, this action rests upon the question " whether the defendants Isaac and Yonas Swirsky, on July 6, 1920, owed the plaintiffs either debt or duty within the meaning of section 6132 of the General Statutes of this state." The trial court held that they did, and rendered a judgment accordingly. As the appellant further says, " the result of this appeal must depend upon the corrections of the finding in the particulars asked for in the grounds of appeal," for on the finding as made the judgment was clearly justified. By obtaining changes in the finding, the appellant seeks to secure a state of facts which, if established, would not sustain the judgment rendered by the trial court.

Of the forty reasons of appeal, the seventeenth, eighteenth, and nineteenth challenge the clauses, " entered into a written agreement, Exhibit I," " entered into a written agreement, Exhibit J," and " by these contracts became obligated to pay plaintiffs a sum of money amounting to about $358,400," and ask that they be stricken out. The appellant says " the undisputed evidence" requires a different finding; that these writings were not contracts and did not create an obligation to pay as stated. Though appearing in the finding as facts, these are essentially legal conclusions, and it is immaterial that they are not so designated.

Appellant seeks by the twenty-third, twenty-fourth, and twenty-fifth paragraphs of his appeal to have certain paragraphs of his draft finding substituted for those above referred to, and the sum total of his claims is that these writings, Exhibits I and J, were mere offers by I. Swirsky & Son to buy the sugar referred to, and never became binding contracts, because the offers were never accepted by the plaintiffs, and because they rested upon the condition precedent that I. Swirsky & Son should comply with the provisions regarding a credit with approved banks, which condition was never met by the latter. The question is whether the trial court could have legally reached the conclusion expressed by that part of the finding to which the appellant now objects, and this is to be determined from an examination of the subordinate facts.

Defendant's attack upon the existence of these contracts is for their want of consideration and for want of mutuality of agreement and obligation as to these defendants. That there were proper parties competent to contract is evident; so, too, there was a proper subject-matter. A consideration has been defined as a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. Cook v. Bradley, 7 Conn. 57, 62, 18 Am.Dec. 79; Lewis v. Phoenix Mut. Life Ins. Co., 39 Conn. 100, 106. And so it has been said that every sufficient consideration, although not technically an estoppel, contains the substantial elements of an estoppel in pais, for, if a man by his promise induces another to change his situation and is then permitted to deny the validity of the promise, he is thus perpetrating a fraud, and injuring another by a false promise. The law will not permit this, but will hold him to the fulfillment of his undertaking. Rice v. Almy, 32 Conn. 297, 304.

There is a sufficiently obvious consideration in the two writings in question to sustain a contract obligation for both partie...