Walp v. Lamkin & Foster

• Court: Supreme Court of Connecticut
• Citation: 76 Conn. 515,57 A. 277
• Decision Date: 03 March 1904
• Parties: WALP v. LAMKIN & FOSTER.

57 A. 277
76 Conn. 515

WALP
v.
LAMKIN & FOSTER.

Supreme Court of Errors of Connecticut.

March 3, 1904.

Appeal from Superior Court, New Haven County; George W. Wheeler, Judge.

Action for damages for the conversion of personal property by Mary K. Walp against Lamkin & Foster. From a judgment for defendants, plaintiff appeals. Affirmed.

After the decision of certain questions of law raised by demurrers to the pleadings, the case was tried to the court upon its merits, and the following facts found: On the 30th of September, 1901, W. G. Davidson & Co., who were conducting a retail shoe business in New Haven, and who were insolvent, sold their entire stock of merchandise, of the value of $3,500, to one Isaac Koch, of Brooklyn, N. Y. Said sale, so far as Davidson & Co. were concerned, was fraudulent and void as to creditors. As to Koch, it is not found that the sale was fraudulent. Said sale was not made in writing and recorded within one day after the sale or delivery, as required by section 4868, Gen. St 1902. On October 1, 1901, the plaintiff saw the goods packed in cases at Davidson & Co.'s store, about to be loaded upon a van, and sent his clerk to Davidson & Co.'s to learn if the goods could be bought, and, if not, to whom they were to be sent, and, having learned where and to whom the goods were consigned, wrote to Koch concerning the purchase of the stock, and, upon receiving a reply on October 4th, went to the rooms of the Brooklyn Purchasing Syndicate, in Brooklyn, N. Y., whore said stock was exposed for sale, and purchased the same for $2,400. Said goods were shipped by

57 A. 278

plaintiff to her store in New Haven, where they arrived October 9th, and were then placed by her on sale. Before making said purchase, the plaintiff knew that Davidson & Co., while insolvent, had sold substantially all their stock to Koch, and that the sale had been made in fraud of their creditors. While the goods were in the plaintiff's store, the defendants, on the 12th of October, attempted to attach them, and on October 31, 1901, attached a part of them, as the goods of Davidson & Co., to secure payment of a claim of $425 for goods sold by the defendants to Davidson & Co. The goods so taken by the defendants were of the value of $800. Upon these facts judgment was rendered for the defendants.

Henry G. Newton and Bernard E. Lynch, for appellant. Cornelius J. Danaher, for appellees.

HALL, J. (after stating the facts). The defendants failed in the trial court to prove the allegation of their second defense, that the plaintiff purchased the goods in question from the fraudulent vendee of Davidson. The title of Koch, from whom the plaintiff purchased, was not impaired by the fraud of Davidson & Co., in which the defendants failed to prove that Koch participated. Knower v. Cadden Clothing Co., 57 Conn. 202-217, 17 Atl. 580. Koch's title, therefore, was only defective because made so by the provisions of Gen. St. 1902, § 4869, regarding the effect of a sale by a retail dealer in this state of the whole, or a large part, of his stock in trade, without a compliance with the requirements of section 4868 as to the manner of making and recording such sale. The plaintiff's title can only be defective for the same reason, since by her purchase from Koch she acquired at least as good a title as that of Koch, her vendor. Had she been a bona fide purchaser from him, she might have acquired even a better title than that of her vendor. Parker v. Crittenden, 37 Conn. 148-152; Williamson v. Russell, 39 Conn. 406—412.

The ultimate question, then, for our decision, is, how was the plaintiff's title to these goods affected by the provisions of sections 4868 and 4869? We think the fair import of the finding is that the sale from Davidson & Co. to Koch was made at New Haven. The record states that the sale to Koch was made on the 30th of September, 1901; that the goods, immediately before that date, were a part of Davidson & Co.'s stock of merchandise, in his store in New Haven; and that they were not taken from the store and shipped to New York until October 1st. These statements, in the absence of any language in the finding indicating that the contract was made in New York, justify us in treating the sale as completed in this state on the 30th of September, when the goods...