Smith v. Brockett

• Decision Date: 13 July 1897
• Citation: 69 Conn. 492,38 A. 57
• Court: Connecticut Supreme Court
• Parties: SMITH v. BROCKETT.

38 A. 57

69 Conn. 492

SMITH

v. BROCKETT.

Supreme Court of Errors of Connecticut.

July 13, 1897.

Appeal from superior court, New Haven county; John M. Thayer, Judge.

Replevin by Heyman A. Smith against Luzerne A. Brockett for a stock of boots and shoes. Judgment for plaintiff, and defendant appeals. Reversed.

The finding stated the following facts: Upon the 21st day of February, 1895, the goods replevied were the property of Lewis Harris, of Boston, Mass., who was then engaged in the retail shoe business in East Boston, and constituted his entire stock in trade. On that day he sold and delivered them to the plaintiff, for $1,450, which the latter then paid to him. Within a few days the goods were by the plaintiff shipped by rail to Doblin & Rosenthal, auctioneers, at 225 East Forty-Second street, New York, and, while in transit through New Haven, were attached by the defendant as a deputy sheriff, upon a lawful writ of attachment in favor of the Clark-Hutchinson Company, of Boston, against said Harris, as the property of said Harris. The defendant claimed upon the trial that Harris, at the time of said sale, was insolvent; that, under the statutes and common law of Massachusetts, said sale was out of the ordinary course of business, and was prima facie fraudulent and void against said attaching creditor; and that the transaction between Smith and Harris was one of a series of fraudulent transactions of Coughlin, Doblin & Rosenthal, and Smith, and in furtherance of a general plan between them to cheat and defraud the creditors of Harris out of their claims against him, by securing to themselves all of his property. To prove the insolvency of Harris, the defendant offered in evidence certain papers certified by the register of the Suffolk (Massachusetts) court of insolvency to be a true copy of papers appertaining to said court, and on file and of record in the office of said court, to wit, schedule of creditors and property filed June 12, 1895, in the case of Lewis Harris, of Boston, in said county of Suffolk, an insolvent debtor, and copy of the docket entries in said case, the first docket entry being, "June 11, 1895, (1) pet'n by debtor;" and also another paper, certified by the same official to be a copy of a paper appertaining to said court, on file, etc., "to wit, the examination of Lewis Hanis, of Boston, in said county of Suffolk, insolvent debtor," taken February 7, 1896. Upon the first of said papers was the certificate of the judge of said court of insolvency that the person certifying as the registrar of said court was such officer, the proper certifying officer of the court, and had, by law, custody of the seal of said court, its books, records, documents, and papers. No such certificate was attached to the second of said papers. To the admission of these papers in evidence, counsel for the plaintiff objected, as each was offered, on the ground that they were not properly authenticated, and did not purport to be a copy of the insolvency proceedings, and did not show that said Harris was ever adjudicated an insolvent, and did not show upon what, if any, proceedings he was adjudicated an insolvent, and that it did not appear that the Harris therein named was the one who sold these goods to the plaintiff. The court sustained the objection as to each of the papers. The plaintiff testified that he learned that the stock of goods was for sale through Doblin & Rosenthal, the former of whom was his brother-in-law, and that he went to Boston with Doblin to examine the stock before purchasing. Upon cross-examination the defendant's counsel asked him the following question: "Did you know that your agents, Doblin & Rosenthal, were in the business of buying bankrupts' stocks, for the purpose of cheating their creditors?" To this question the plaintiff's counsel objected, and the objection was sustained. Doblin was called as a witness for the plaintiff, and testified in chief that he and his partner heard that Harris' stock of goods was for sale, through one Coughlin, of Boston; that his partner, Rosenthal, went to Boston to see it, and wrote the witness that he thought the plaintiff (who is a shoe dealer in New York) could use the stock; that the witness thereupon told the plaintiff about it; and that they went on to Boston, and examined the stock; and that the plaintiff bought it. Upon cross-examination of this witness, the defendant's counsel asked him the following question: "Have you recently been examined in insolvency in New York?" The plaintiff's counsel objected to the question as not proper cross-examination, and the objection was sustained. This question was asked of this witness (he having first been asked and testified that himself, Rosenthal, and the plaintiff went to Harris' store together) on cross-examination: "Did you make any inquiry of Mr. Harris, or was any made in your hearing, as to the amount of the indebtedness of Mr. Harris?" The question was objected to as not cross-examination, and the objection was sustained. The witness was again called on rebuttal, and then testified that inquiry was made in his presence of Mr. Harris as to his property and indebtedness, and that Harris replied that he owned the building in which his stock was, and the building across the streets, and that he had no indebtedness. This witness, when called in chief, was asked on cross-examination the following questions: "Did you have a transaction of this sort [meaning the purchase of an entire stock of goods] with a Mr. Weil, a Walker street dry-goods firm?" "Is this the only stock of goods in East Boston that your firm bought at that time?" "Did your firm buy any other stocks in East Boston?" "Were you Smith's agents for the purpose of purchasing any other stocks in Boston?" To each of these questions, when put, the plaintiff's counsel objected, because they were not proper cross-examination, and each objection was sustained. The defendant offered in evidence declarations of Rosenthal and Harris (who were not called as witnesses), claiming them both as declarations of conspirators with the plaintiff, and to prove a conspiracy; but the court excluded them, being of opinion that no prima facie proof of any conspiracy had been shown. To all evidence offered by the defendant for the purpose of proving fraud, or conspiracy, or the insolvency of Harris, the plaintiff, in addition to the grounds of objection stated heretofore, made the general objection that it was Inadmissible under the pleadings. These were a complaint in the statutory form, and the general issue, with notice that the defendant would offer evidence to prove that he had taken the goods as a deputy sheriff, on an attachment against Harris in favor of the Clark-Hutchinson Company, and that they then were, and still are, the property of Harris.

Charles H. Fowler, for appellant.

David Strouse, for appellee.

BALDWIN, J. The leading provisions of the practice act do not apply to actions of replevin, and the statute authorizes a plea of "the general issue, with or without notice, as may be necessary." Gen. St. §§ 905, 13.30. Under such a plea, any evidence which goes to meet the plaintiff's allegations that the goods in question were his property, of which he was entitled to the immediate possession, and that the defendant has wrongfully detained them from him, is relevant and admissible, subject to the statutory rule as to notice contained in Revision 1875, p. 424, tit. 19, c. 7, § 10. It was therefore competent for the defendant in this action to offer proof that the plaintiff's title was the fruit of a fraudulent conspiracy to cheat the creditors of Harris, who, as to them, remained the real owner, and upon an attachment against whom the goods were rightfully detained. The issue remains the same, whatever notice may be filed, and the notice is always liberally construed in favor of the pleader. Curtis v. Gill, 34 Conn. 56; Merrill v. Everett, 38 Conn. 40.

The plaintiff, after buying the goods from Harris, had shipped them from Boston to Doblin & Rosenthal, a firm of...