In re Wilcox & Howe Co.

• Decision Date: 05 January 1898
• Citation: 39 A. 163,70 Conn. 220
• Court: Connecticut Supreme Court
• Parties: In re WILCOX & HOWE CO.

39 A. 163

70 Conn. 220

In re WILCOX & HOWE CO.

Supreme Court of Errors of Connecticut.

Jan. 5, 1898.

Case reserved from superior court, Fairfield county; William T. Elmer, Judge.

Application by the receiver of the Wilcox & Howe Company for advice concerning the allowance of certain claims against the company, which had been presented to him as receiver, for allowance. Upon an agreed statement of facts, the court reserved the case for the consideration and advice of this court.

The material facts in the agreed statement are these:

The Wilcox & Howe Company is a joint-stock corporation, duly organized under the laws of Connecticut, and located and having its place of business in the town of Huntington, in Fairfield county. It is largely indebted and insolvent. The receiver of said corporation was duly appointed on the 8th day of October, 1890, upon an application for the winding up of the affairs of said company, pursuant to the statute. Since the 8th of October, 1896, the receiver has been engaged in the duties of his said appointment, and the affairs of said corporation are now being wound up in the superior court for Fairfield county. All of the respondents to said application, except J. J. McCabe, who did not appear, now are, and at all times since the appointment of said receiver have been, ready and willing to perform the agreements made and to be performed by them, respectively, as set forth in the contracts hereinafter referred to. All of the parties respondent to said application notified said receiver, within a reasonable time after his appointment, that the several machines claimed to belong to them, respectively, as hereinafter described, were in the possession of said Wilcox & Howe Company at the time of his appointment, under the terms of the several contracts hereinafter set forth. The receiver, upon taking possession, under his appointment, of the property of the corporation, found in its shop, and in use by it, certain machinery which had been delivered to it by the parties hereinafter named, under the agreements hereinafter described.

The Waterbury Farrel Foundry & Machine Company, of Waterbury, in this state, had delivered machinery to the Wilcox & Howe Company, under three separate written agreements, in the form of, and called, "Conditional Leases," containing, among other things, an agreement that upon the payment in full of the price of said machinery, in the form of rent, said machinery should become the property of the Wilcox & Howe Company. The leases also contained the following provisions, among others: "And the said Wilcox & Howe Co. agrees to have this lease recorded immediately, if by law required to be recorded in the state where said Wilcox & Howe Co. is located and doing business. And if default shall at any time be made in the payment of rent as aforesaid, or any of the agreements herein shall be violated, then this lease shall be void." Said three written agreements were dated, respectively, December 14, 1895, May 25, 1896, and June 25, 1896. Each was witnessed by one witness. None of them were acknowledged, and none of them were ever recorded in the town clerk's office of the town of Huntington, where said corporation, the Wilcox & Howe Company, was located. Prior to the appointment of said receiver, certain payments had been made under the first two leases, but nothing had been paid under the last one. Within the time limited by the court for the presentation of claims against the Wilcox & Howe Company, the Waterbury Company presented a claim to the receiver for the balance, with interest, due under said agreements, and also claimed that the payment of the amounts due was secured under said agreements, which it further claimed were binding on said receiver, as the same would have been on the Wilcox & Howe Company.

Merrill Bros., of Brooklyn, in the state of New York, had delivered machinery to said corporation under a written agreement which reads as follows:

"This agreement, made the 13th day of January, by us, the Wilcox and Howe Company, of Derby, Connecticut, witnesseth: That, in consideration of the sale and delivery to us of the drop hammers hereinafter mentioned by Merrill Brothers, of Brooklyn, New York, and of one dollar by said Merrill Brothers in hand paid, we have bargained and sold, by these presents, to said Merrill Brothers, two certain drop hammers now in our factory, at Derby, Connecticut, to them, their representatives and assigns, forever. This sale is conditional upon the payment by us of each and every of twelve promissory notes given in payment for said chattels, aggregating the sum of twenty-four hundred ($2,400) dollars, to wit, one note due March 20th, 1896, for $200, and eleven other notes, for $200 each, due successively at the end of every succeeding thirty days thereafter, with interest. It is expressly agreed that upon default in the payment of the principal or interest of any of said notes, or the removal of said drops from said factory, or in case said Wilcox & Howe Company shall sell, incumber, or suffer to be incumbered, by any lien or process, the said drop hammers, the whole of said principal sum shall become due, with interest, and said drop hammers shall become the property of said Merrill Brothers; and they may enter the premises where said drop hammers are, and take, carryaway, and dispose of the same. Upon payment of all of said notes and interest in the manner and at the time hereinbefore provided, and the due observation of the other condition herein, these presents shall have no effect. In witness whereof, we have hereunto set out hands and seal, the day and year first above written. The Wilcox & Howe Co. Isaac P Howe, Sec. and Treas. [Seal.]

"Signed, sealed, and delivered in presence of: Edwin B. Gager. Helen E. Bailey."

This instrument was duly acknowledged, and was recorded in the office of the town clerk for the town of Derby, on the 9th day of March, 1896, and in the office of the town clerk for the town of Huntington, on the 6th day of January, 1897. Merrill Bros, claimed that the machinery described in said instrument either belonged to them, or that they had a chattel mortgage thereon to secure the sum due to them.

The Pratt & Whitney Company, of Hartford, in this state, had delivered machinery to the Wilcox & Howe Company, under a written agreement, dated June 8, 1896, in the form of a tease, containing, among other things, an agreement, in substance, that upon the performance of certain conditions, including the payment of the price of said machinery, with interest, said machinery should become the property of the Wilcox & Howe Company. This instrument was not acknowledged, but it was on the 24th of August, 1896, recorded in the office of the town clerk for the town of Huntington.

J. J. McCabe & Co., of the city of New York, had delivered certain machinery to the Wilcox & Howe Company, under and pursuant to the following writing:

"Order No.

"14 Dey Street, New York,

"Dec. 4th, 1895.

"Consignment Account, Stored at Wilcox & Howe Co.'s, Birmingham, Conn.

"To J. J. McCabe, Dr.

"Iron-Working Machinery.

To 1 new upright drill, 24" swing, with back gears * * *

$150 00

1 new engine lathe, 14" swing, 6 ft . bed, with * * *

237 50

$387 50

"Shipped via N. Y., N. H. & H. R. R.

"Terms: Rental 5% each month for 12 months. Same to apply on purchase if the machines are to be retained. Payments to include interest at 6%."

No contract or instrument in writing concerning the machinery described in said writing was ever recorded in the town clerk's office of the town of Huntington.

The New Haven Manufacturing Company, of New Haven, in this state, had delivered machinery to the Wilcox & Howe Company under and pursuant to a written agreement, in the form of a receipt, in which, in substance, it was agreed that the machinery mentioned therein, which the Wilcox & Howe Company therein acknowledged it had received from the New Haven Company, should be and remain the property of said New Haven Company till the price of the same, stated in said agreement, should be paid in full, when said machinery should become the property of said Wilcox & Howe Company. This instrument was dated the 24th day of October, 1895, but it was not acknowledged, nor was it ever recorded in the town clerk's office of the town of Huntington.

The Farist Steel Company of Bridgeport, in this state, had delivered to the Wilcox & Howe Company a machine called a "Merrill Drop," under a parol agreement, by which the latter company was to pay to the steel company $20 per month as a rental, and the title to said machine was to vest in the Wilcox & Howe Company when $400, the purchase price, had been paid in full. There was no written contract as to said drop, and nothing is upon record pertaining to the same in the town clerk's office of the town of Huntington.

Prior to the appointment of the receiver, the Wilcox & Howe Company had made payments on account under said agreements to Merrill Bros., the Farist Steel Company, J. J. McCabe & Co., and the New Haven Manufacturing Company. Nothing had been paid on account to the Pratt & Whitney Company. Each of said last five named parties claimed that the amounts, with interest, due to them, respectively, under said agreements, were secured to each of them upon the machinery described in said agreements, and that said agreements were binding upon the receiver, as they would be upon the Wilcox & Howe Company. All of said machinery described in all of the agreements herein mentioned has hitherto remained, and still is, in the possession of the receiver, and has been used by him from time to time in the prosecution of the business of the company, as conducted by him, and he has paid nothing on account thereof.

The questions reserved are stated as follows: (1) Are the several contracts mentioned in said statement of facts binding upon said receiver in the same manner as they would have been on said Wilcox & Howe...