Pub.ker Commercial Alcohol Co. v. Harger

• Decision Date: 26 February 1943
• Citation: 31 A.2d 27,129 Conn. 655
• Court: Connecticut Supreme Court
• Parties: PUBLICKER COMMERCIAL ALCOHOL CO. v. HARGER, Deputy Sheriff, et al.

129 Conn. 655

31 A.2d 27

PUBLICKER COMMERCIAL ALCOHOL CO.

v.HARGER, Deputy Sheriff, et al.

Supreme Court of Errors of Connecticut.

Feb. 26, 1943.

Appeal from Superior Court, Hartford County; Wynne, Judge.

Action of replevin by Publicker Commercial Alcohol Company against Ralph A. Harger, Deputy Sheriff, and others, tried to the court. From a judgment for defendants, plaintiff appeals.

Error and case remanded with directions.

ELLS, J., dissenting.

David Levy, of Hartford (Solomon Elsner, of Hartford, on the brief), for appellant.

Thomas J. Conroy, Asst. Atty. Gen. (Francis A. Pallotti, Atty. Gen., on the brief), for appellee.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, DICKENSON, JJ.

MALTBIE, Chief Justice.

The finding, with an addition to which the plaintiff is entitled, states facts, substantially undisputed, sufficient for the decision of the case. The plaintiff is engaged in the business of selling alcohol. It requires payment in advance of the entire purchase price of all alcohols it sells. For over two years it had been doing business with the Standard Spirits Corporation under an arrangement made for the purpose of complying with the requirements of payment in advance, in accordance with which the Standard Corporation left signed checks at the office of the plaintiff, payable to it but with the date and amount left blank, to be filled in by it when purchases were made. On June 30, 1041, and July 1, 1941, the Standard Corporation made two purchases, each of two drums of alcohol, definitely identified by their serial numbers, with directions to ship them to the Atlas Distillery Products Company at its place of business in Hartford. The plaintiff filled out two of the checks the Standard Corporation had left with it for the purchase price, indorsed and deposited them. It shipped the drums of alcohol to the Atlas Company at Hartford and they were received by it. The Atlas Company, on receipt of the two drums first purchased, dumped them for bottling, labeling and casing. The defendant Harger, as deputy sheriff, attached the contents of one drum so dumped and later attached the two drums of alcohol shipped under the second purchase. The checks deposited by the plaintiff were dishonored for insufficiency of funds when they reached the bank on which they were drawn. The attachment was made upon a tax warrant for unpaid taxes due from the Standard Corporation to the state for the month of May, 1941, and required to be paid on or before June 20, 1941, with the addition of a penalty for a failure to make payment on or before that day. General Statutes, Cum.Sup.1939, § 986e(d)(f).

The situation does not fall within rule 4 of § 4639 of the General Statutes, a part of our Sales Act, for the reason that that rule applies only as regards a contract to sell unascertained or future goods by description, whereas the sale here in question was of goods definitely identified by the serial numbers of the drums. In the absence of a special agreement to the contrary, a check is not payment and the debt for which it is given is not discharged until the check is honored or paid. Alexiou v. Bridgeport-People's Savings Bank, 110 Conn. 397, 401, 148 A. 374; Bassett v. Merchants Trust Co., 118 Conn. 586, 593, 173 A. 777, 93 A.L.R. 1008; Reade v. Indemnity Ins. Co., 121 Conn. 309, 313, 174 A. 646. The trial court has not found that the checks involved in this case were accepted as payment and this is not implied as matter of law from the fact that they were supplied in blank to the plaintiff to be filled in by it when a purchase was made, under an arrangement designed to meet its requirement that payment for alcohol sold be made in advance. The situation is not different from that where sales are made only for cash, but goods are delivered to a purchaser upon receipt of a check. So far...