Kugel v. Ngel

• Decision Date: 05 March 1902
• Court: Connecticut Supreme Court
• Parties: KUGEL v. NGEL.

51 A. 533

74 Conn. 546

KUGEL

v. NGEL.

Supreme Court of Errors of Connecticut.

March 5, 1902.

Appeal from city court of New Haven; James Bishop, Judge.

Action by Samuel Kugel against Mathewson Angel. From a judgment in favor of defendant, plaintiff appeals. Reversed.

The complaint alleges: (1) The sale to the plaintiff of a lot of goods for $41 on February 20, 1901. (2) The plaintiff paid $10 on February 20th, and the balance of the price on the following day. (3) At the time of paying the balance it was agreed that the goods should be delivered for transportation at the railroad station on or before March 1st. (4) The defendant failed to deliver the goods as agreed, and did not deliver them until April 1st. (5) The plaintiff declined to accept the goods so delivered for transportation on April 1st. (6) The goods sold were seasonable goods, as the defendant knew; and, by reason of the delay in delivery, the plaintiff lost the sale of the goods, and suffered damage to the amount of $50.

The answer admits the sale, and the delay in delivery until April 1st, and the refusal of plaintiff to accept the goods at that time. It denies the other allegations of the complaint, qualifying the denial by an allegation that the sale was for cash, payable before delivery; that the plaintiff paid $10 in money, and gave the defendant his check for the balance; that it was then agreed that the defendant should deliver goods for transportation when he found out that the check was paid; and that the defendant did not find out that the check was paid until after he shipped the goods, on April 1st.

The plaintiff denied this explanatory allegation, and the court found the issue thus framed for the defendant, and thereupon rendered judgment against the plaintiff. The facts upon which the judgment rests are thus stated by the court: (1) Plaintiff bought goods, and agreed to pay $41. (2) Defendant was to hold goods until he knew the check was paid. (3) The defendant deposited plaintiff's check, and thereafter, when he made deposits, inquired if the check was paid, and was informed that it was not (4) Up to the time that he shipped goods, defendant was not informed that the check was paid. (5) He used due diligence to ascertain if check had been paid.

The essential conclusions of fact reached by the court are these: First, the parties agreed that defendant should hold the goods sold until he knew the check given in payment had been paid; second, defendant was not informed that the check had been paid until after he shipped the goods.

The finding for appeal states the following additional facts upon which the court, in connection with the facts stated in the judgment, based its conclusion that the defendant had no knowledge of the payment of the check: On February 26, 1901, the defendant, at Willimantic, agreed to sell, and did sell, the plaintiff a bill of goods, wares, and merchandise, for the agreed price of $41, to be paid for in cash prior to the delivery of the same. The defendant made out a bill for said goods, and the plaintiff paid as a deposit $10; the plaintiff agreeing to pay the balance the next morning. The following day, February 27th, the plaintiff was unable to pay said balance, $31, but deposited with defendant his check on the Union Trust Company, at New Haven; and it was agreed that said goods should be delivered at the railroad station at Willimantic when the defendant found that the check was paid. Thereupon the defendant accepted said check and receipted the bill, with the agreement that, as soon as check came back paid, he would ship the goods. The plaintiff packed said goods, and made them ready for shipment. On the same day, February 27th, the defendant deposited said check with the Windham National Bank, a bank for the deposit and collection of checks; he being a regular depositor at said bank. After he had deposited said check, defendant made inquiry...