Wells v. McNerney

• Decision Date: 09 May 1902
• Citation: 51 A. 1064,74 Conn. 675
• Parties: WELLS v. McNERNEY et al.
• Court: Connecticut Supreme Court

51 A. 1064

74 Conn. 675

WELLS

v. McNERNEY et al.

Supreme Court of Errors of Connecticut.

May 9, 1902.

Appeal from court of common pleas, New Haven county; Leverett M. Hubbard, Judge.

Action for replevin of goods attached, brought by John S. Wells against Peter J. McNerney and others. Judgment of return rendered for defendants, and plaintiff appeals. Reversed.

The defendant McNerney attached the goods while in the possession of the plaintiff, by virtue of a writ of attachment in an action wherein the defendant Frederick N. Sperry was plaintiff and one Ira E. Abell was defendant. The plaintiff claimed ownership and possession of the property through the sale and delivery of the same to him by the said Ira E. Abell. The sale and delivery claimed was made in pursuance of the following agreement: "This agreement, made this 28th day of Sep., 1900, between Ira E. Abell, of the town and county of New-Haven, in the state of Connecticut, and John S. Wells, of said town of New Haven, witnesseth that in consideration of the sum of seventy-live dollars paid by said Wells to said Abell said Abell agrees to deliver to said Wells for his fair and reasonable use for a period not exceeding six weeks from this date a certain chestnut mare and a phaeton, and the harness, blankets, and robes used with said horse and carriage, he during said six weeks to feed and stable said mare, and keep her in as good condition as she now is, and to keep under cover said carriage, blankets, and robes when not in use. Said Wells to have the option to buy and have a good title to said mare, harness, blankets, and robes at any time during said six weeks on payment of an additional sum of twenty-five dollars. And the said Wells hereby agrees to accept the above conditions for said consideration, he to have the option to redeliver said mare, carriage, harness, blankets, and robes to said Abell on a repayment to him by said Abell of said sum of seventy-five dollars. Dated at New Haven this 28th day of Sep., A. D. 1900. Ira E. Abell. John S. Wells. Witness: Ethel M. Wells." This agreement was not recorded. At the time of the attachment the plaintiff had not paid Abell the additional sum of $25, and had not redelivered the property, and Abell had not repaid the $75 paid him by the plaintiff. The defendants claimed that the agreement was a contract for sale, conditioned on the retention of the title by the vendor, and, not being recorded, was void as against Abell's creditors, and that the title to the goods had never passed from Abell. Other facts, so far as material, appear in the opinion.

George E. Hall, for appellant.

John Elliott, for appellees.

HAMERSLEY, J. (after stating the facts). On September 28, 1900, the plaintiff, Wells, paid Ira E. Abell, then owner of the property replevied, $75, said sum being three-fourths of the agreed value of the property. In consideration of that payment, Abell delivered the property to Wells. On November 23d, following, the defendant Sperry commenced an action against Abell by writ of attachment, which writ was served by the defendant McNerney, who attached the property as that of Abell, the same being then in the possession of Wells, who claimed to be owner thereof. On November 20th, following, this writ of replevin was issued. The defendants pleaded the general issue without notice, and the court rendered judgment in their favor for the return of the property. The trial court sets out in the finding all the material facts, and from these facts draws the conclusion that at the time of the attachment the title to the property was in Abell. In this we think the court erred. The payment and delivery of September...