Ketchum v. Packer

• Decision Date: 08 February 1895
• Citation: 65 Conn. 544,33 A. 499
• Parties: KETCHUM et al. v. PACKER.
• Court: Connecticut Supreme Court

33 A. 499

65 Conn. 544

KETCHUM et al.

v. PACKER.

Supreme Court of Errors of Connecticut.

Feb. 8, 1895.

Appeal from superior court, New London county; Hall, Judge.

Action by Rollin T. Ketchum, Jr., and others, against Thomas E. Packer. There was a judgment for plaintiffs, and defendant appeals. No error.

Hadlai A. Hull and Wm. F. M. Rogers, for appellant.

Walter C. Noyes, for appellees.

FENN, J. This action was brought by Rollin T. Ketchum, Jr., and William T. Ketchum, and in behalf of Annie R., Frederick M., Mary D., and Beulah T. Ketchum, minors, by their guardian. The cause of action, as stated in the amended complaint, is the alleged conversion by the defendant of certain trust bonds and securities belonging to the plaintiffs. They claimed, by way of equitable relief, a discovery, an injunction, and a judgment for retransfer of the property; and by way of alternate relief, in case said property had been so disposed of that it or its avails could not be transferred by the defendant to the plaintiffs, $7,000 damages. The defendant, to the defense of denial, joined as a special answer that the bonds and securities alleged in said complaint to have been received by the defendant were transferable by delivery, and were held by the banks, from which it was alleged in the complaint he had received them, as securities for loans made to one Charles R. Tinker by said banks, upon notes indorsed by the defendant; that when said notes became due, said Tinker was unable to pay the same, and the defendant, as such indorser, was compelled by said banks to pay said notes, and took from said banks said securities and bonds so held by said banks as security, and sold the same, and applied the proceeds and avails of said sale towards the payment of said notes, by the permission and authority of said Tinker, which proceeds and avails were not sufficient to reimburse the defendant; that the knowledge and notice of the defendant, as to the ownership of said bonds and securities, was the possession by said banks of the same. This answer was denied by the plaintiffs. The court found that Rollin T. Ketchum, father of the plaintiffs, was duly appointed their guardian; that as such guardian he received certain personal property, consisting of bonds, stocks, and savings-bank deposits, which had been bequeathed to his wards by their grandmother; that in 1885 he had reinvested all of this property though the agency of the defendant, who resided in the same town and was a dealer in investment securities, and received in exchange certain other bonds and securities at various times subsequent thereto, and prior to February, 1890; that certain of these bonds and securities were again exchanged for other securities, all through the agency of the defendant; that between June, 1888, and August, 1892, the said Ketchum, guardian, loaned one Charles R. Tinker, his son-in-law, all the bonds and securities of the wards so purchased from the defendant and held in trust, to enable the said Tinker to use the same as collateral for loans procured by said Tinker in his business as a merchant in New London; that in August, 1892, Tinker made an assignment in insolvency; that none of said bonds were ever returned or accounted for by said Tinker; that when Tinker received said securities from said Ketchum, he had actual knowledge that they belonged to said wards, and were being disposed of by said Ketchum in violation of the trust under which they were held by him as such guardian; that the defendant had knowledge of said transactions between said Tinker and Ketchum; that among these bonds and securities were certain specified ones, amounting in value, in the aggregate, to $4,300, which afterwards came into the possession of, and were converted by, the defendant, under the circumstances hereinafter detailed; that two bonds, called "No. 27 Dolores County," for $500, and "No. 23 San Miguel County," for $200, had been transferred by Tinker to the defendant as collateral to loans, the others having come to the defendant from two banks, where they had been pledged by Tinker as collateral; that neither of said banks knew that the bonds were trust property, nor that said Tinker might not lawfully and properly pledge the same to secure his notes; that the trust character of said property was in no measure indicated upon said securities, and they were all payable to bearer. Judgment was rendered by the court in favor of the plaintiffs for the sum of $4,665.50 and costs. The defendant having appealed, requested the judge to incorporate in the finding certain alleged facts, which he claimed to be proven by the evidence, embraced in 147 numbered paragraphs. Many of these relate to matters embraced in the finding, and are identical in purport with statements therein contained. These, of course, require no further comment But many other paragraphs differ essentially from the finding. The court wrote, upon the margin of the several paragraphs, "Found," and "Not found," instead of "Proven," and "Not proven," which is the form prescribed by the statute. Pub. Acts 1893, c. 174, § 4. The defendant insists that he is thus deprived of the right which the statute confers, because he says that the meaning of the words "proven" and "found" is not identical; that while no fact should be found that is not proven, a fact may be proven and yet not found by the court And we are asked to infer that the court below purposely used the word "found" in a strict technical sense, and not intending it as synonymous with "proven"; regarding the paragraphs marked "Not found" simply as immaterial. But in the absence of anything in the record to render plausible such an inference, we are unwilling to make it. On the contrary, we entertain no doubt that the judge used "found" as meaning "proven," and "not found" as signifying "not proven." But we ought to say that such a change from the formula required by the statute is not to be approved. So, too, the expressions in the margin of many of the paragraphs, such as "Not found, except as stated in the finding," "Found only as in finding," and the like, do not comply with the statute. The purpose of the requirement for separate numbered paragraphs is to insure singleness, as well as clearness, of statement Unless a paragraph is so framed that it can be found "proven" as a whole, and precisely as stated, it should be marked "Not proven." No qualification, modification, or reference is required or proper. The defendant filed 17 numbered exceptions to the finding of facts made by the court, and to the refusal to find facts as requested. These exceptions constitute the basis of several, but it is very difficult to determine precisely how many, of the defendant's 61 reasons of appeal. The principal grievance complained of is that the court has found that, at and prior to the time that the trust securities came into the hands of the defendant, he knew that said bonds and securities were held by Ketchum, as guardian, belonged to his wards, had been loaned to him by Tinker to be used as collateral, and that such use of said bonds by said Ketchum and said Tinker was improper. The defendant asserts that such finding was not warranted by the evidence. By far the larger part of the brief of his counsel, and of the time occupied in oral argument in its support, was devoted to the effort to procure a correction by this court of the finding of the court below, in respect to this particular.

The views of this court concerning the statute of 1893 have been so recently and so fully stated in other cases, especially in Styles v. Tyler, 64 Conn. 432, 30 Atl. 165, that no occasion exists to enlarge upon them here. But the defendant relies upon language used in Styles v. Tyler, at page 459, 64 Conn., and page 165, 30 Atl., namely, that it is the province of this court to determine "questions of legal conclusion, where law and fact are so intermingled that the main fact is not a pure question of fact but a question of the legal conclusion to be drawn from subordinate facts"; and it is his claim that the facts upon which the finding that the defendant knew, was based, should be stated, and the conclusion drawn from them can be reviewed upon the evidence reported. This claim is not tenable. The parties in the pleadings and throughout the trial regarded the inquiry as to knowledge as one of fact. The amended complaint contained the allegation of such knowledge. This was a material averment, and was denied by the defendant Upon the argument of the case in the court below, counsel for the defendant claimed, as a matter of fact, and asked the court to find, that the defendant at the time he received said securities, had not actual knowledge that said bonds belonged to the children of Rollin T. Ketchum, and were guardian bonds. The court overruled the claim, and found otherwise, as has been stated. The view then taken by counsel was correct. The question as to...