Mack v. Story

• Decision Date: 04 January 1889
• Court: Connecticut Supreme Court
• Parties: MACK v. STORY.

18 A. 707

57 Conn. 407

MACK

v. STORY.

Supreme Court of Errors of Connecticut.

Jan. 4, 1889.

Appeal from court of common pleas, New London county; CRUMP, Judge.

W. H. Shields and D. G. Perkins, for appellant. C. F. Thayer and J. M. Thayer, for appellee.

LOOMIS, J. This is a complaint in trover to recover the value of four barrels of spirituous liquors, which were attached by the defendant, as a deputy-sheriff, on the 3d day of August, 1885, by virtue of a writ in favor of McNamara & Pratt against Joseph Corture. The controlling question upon the trial was whether Corture or the plaintiff owned the liquors so attached, and this depended upon the question whether, upon the facts found, the sale of the liquors from the plaintiff to Corture, pursuant to which the latter obtained the possession, was upon a valid condition for the retention of the title in the plaintiff, or was absolute, so far as the creditors of Corture were concerned. The trial court held that the sale was conditional, and rendered judgment for the plaintiff. The sole question for review is whether there was error in so holding.

The finding of facts is as follows: "On or about June 6, 1885, the plaintiff's agent and traveling salesman for the New England states, one Jacob Harris, also of said New York city, sold to Joseph Corture, who was at that time, and up to August 3, 1885, proprietor of the Metropolitan Hotel in Norwich, and the keeper of a bar-room in the hotel, where liquors were sold at retail to the public, the liquors described in the complaint, to be delivered in Norwich, upon the express condition that the title to the liquors should remain in the plaintiff until they were fully paid for, and upon the further understanding and express agreement that Corture might sell and dispose of the liquors as they should be called for by customers in the course of his business as such bar-keeper; and in ease any of the liquors should be so sold or disposed of before full payment should be made by him of the entire bill of goods bought of the plaintiff, Corture should account for and pay for the same to the plaintiff's agent, upon his first visit after such sales, at the price at which the liquors were billed to him; and that the plaintiff should only enforce the condition of his sale to Corture against the portion of the liquors remaining unconsumed and unsold at retail. It was further agreed at the time of the sale that all the liquors so sold by the plaintiff to Corture should be paid for in three or four months, and that an acceptance should be given by Corture for the price of the goods, and that something should be paid on the acceptance to the salesman, whenever he should call at Corture's place. The plaintiff, upon being acquainted by the salesman with the terms and conditions of the agreement with Corture, ratified the agreement, and upon the 12th day of June, 1885, sent the goods to Corture upon the conditions stated. There was a mistake made in the kind of liquor contained in one barrel sent, and that barrel (with the exception of five gallons, not here in controversy, retained by Corture with the plaintiff's consent) was returned to the plaintiff, and a barrel of the kind of liquor originally ordered by Corture was sent to him in exchange for it. It was agreed between the plaintiff and Corture that the plaintiff should draw on the latter for the amount for which the liquors were sold, and after the above mistake was corrected the plaintiff did draw on Corture two drafts, dated June 12, 1885, one on three months' time, and one on four months', each for one-half the amounts agreed upon for the price of the liquors sold. The drafts, which were negotiable, were then accepted by Corture, and delivered to the plaintiff, but have never been paid, either in whole or in part, and are still held by the plaintiff, and have never been negotiated. Corture has never paid the whole or any portion of the price of the liquors to the plaintiff. When Corture received the liquors, he placed them in his bar-room, where he kept and sold other liquors. On August 3, 1885, the defendant, who was a deputy-sheriff, seized the liquors described in the complaint, being a portion of the liquors sold by the plaintiff to Corture, by virtue of a lawful writ of attachment, in favor of McNamara & Pratt, wholesale liquor dealers of Norwich, and creditors of Corture, wherein he was commanded to attach the goods or estate of Corture," and, though requested to return the liquors to the plaintiff, he has always refused, and still refuses, to deliver them to him. On the 2d day of August, 1885, Corture absconded, and could not be found at the time of the attachment. On the 4th day of August the plaintiff's salesman called at Corture's bar-room, to look for and take back the liquors, and found that they had been attached. From the time of the sale up to 4th day of August the salesman had not called on Corture or at his place of business. At the time of the attachment the liquors described in the complaint were found in the bar-room, and in each of the barrels in which they were contained had been placed a faucet, and the liquors were on draught, and from each of the barrels had been drawn a portion of its contents. The barrels had also been painted, and so rendered valueless for commercial purposes as liquor barrels, but the plaintiff did not know of the painting until after the attachment. "

A majority of the members of this court unite in the opinion that, upon the foregoing facts, the case comes clearly within, and must be controlled by, the decision in Lewis v. McCabe 49 Conn. 141. The mode of making the contract in the present case through a traveling salesman, its subsequent ratification, its subject-matter, and all its essential provisions, are so nearly identical with the former one, as to suggest that the former decision must have been in the minds of the parties when the latter contract was made. In the former case, as appears from the finding, "it was an express condition that the title to the merchandise should not vest in the vendee until it was fully paid for, and until such payments were made the title was to remain in the vendors." In the present case it is found that the sale and delivery were "upon the express condition that the title to the liquors should remain in the plaintiff until they were paid for." It may be well to remark in this connection that the finding is not that such was the agreement in form, (as the defendant seems to assume,) but in realty, which excludes the idea that the transaction was colorable, or a mere subterfuge, or fraudulent in intent. The defendant, however, does not pretend that there is any difference in the two findings as to this feature of the contracts, (and it is the most important of all,) but claims that there is a material distinction relative to the right of sale given to the conditional vendee. In the former case it was found that the vendee was "a retailer of liquors, and it was supposed by the parties that the merchandise would be used in his business, and in case any of it should have been sold and consumed before the conditions of sale were complied with, the vendors could only enforce their condition against such portion as might remain unsold." In the present case the sale was upon "the understanding and express agreement that Corture might sell and dispose of the liquors as they should be called for by customers in the course of his business as such bar-keeper, and in case any of the liquors should be so sold or disposed of before full payment should be made by him of the entire bill of liquors bought of the plaintiff, Corture should account for and pay for the same, to the plaintiff's agent, upon his first visit after such sales, at the price at which the liquors were billed to him; and that the plaintiff should only enforce the condition of his sale to Corture against the portion of the liquors remaining unconsumed and unsold at retail." Now, notwithstanding the difference in the number of words used, it seems clear that the intent and meaning are the same. In both cases the minds of the contracting parties met upon precisely the same provisions in substance. Whatever rights the vendor had or lost in the one case he had and lost in the other, and whatever right of sale the vendee had in the one case he had equally in the other. The fact that in the one case it is found that the parties mutually supposed and understood that the provisions were part of the agreement, while in the other they expressly so agreed, is too narrow a margin to predicate any legal distinction upon, or any reasoning that can lead to a different result. The fact that the parties deemed it necessary to make the provision in question, shows by necessary implication that without it the title, as they understood, was so retained by the conditional vendor that no sale at all could be made by the vendee; and it shows also that by the mutual understanding of the parties the title to be transferred, pursuant to the permission given, was the title of the conditional vendor, and not that of his vendee. The same reasoning also suggests that the dictum contained in the former opinion, apparently so much relied upon by the counsel for the defendant in the present case, to the effect that where the contract must be construed to mean that the conditional vendee has full authority to sell all the property as his own it would waive or make void the condition, applies no more to this case than it did to the former one. Corture's authority in the present case to "sell and dispose of the liquors as they should be called for by customers in the course of his business as bar-keeper," can have no broader meaning than the permission given McAvoy in the former case, to sell in his business as a retailer of liquors. The court in that opinion did not accept the doctrine there stated as entertained by some courts, that possession, with jus disponendi...