Wentworth v. L. & L. Dining Co., Inc.

• Decision Date: 14 March 1933
• Citation: 165 A. 203,116 Conn. 364
• Parties: WENTWORTH v. L. & L. DINING CO., Inc.
• Court: Connecticut Supreme Court

165 A. 203

116 Conn. 364

WENTWORTH v. L. & L. DINING CO., Inc.

Supreme Court of Errors of Connecticut.

March 14, 1933

Appeal from Superior Court, New Haven County; Frank P. McEvoy Judge.

Receivership action by William F. Wentworth against the L. & L. Dining Company, Inc. From an order allowing the claim of the J. G Brill Company, the receiver appeals.

No error.

Samuel E. Hoyt, of New Haven, for appellant.

David L. Daggett and Arnon D. Thomas, both of New Haven, for appellee J. G. Brill Co.

Argued before MALTBIE, C.J., andHAINES, HINMAN, BANKS, and AVERY JJ.

HAINES, Justice.

The receiver disallowed the claim of the J. G. Brill Company of Pennsylvania against the L. & L. Dining Company for $5,153.05, and the matter was thereafter submitted to the court upon an agreed statement of facts. After hearing the parties, the court allowed the claim, and the receiver appealed. The finding of facts discloses that the Brill Company sold a dining car with certain equipment to the dining company, on June 24, 1929, on a conditional bill of sale, for $11,000, by the terms of which $1,000 was paid at once by the dining company and its notes were delivered to the Brill Company for the balance, being thirty-two notes payable one each month with interest. It was also provided that the car was to be located on a plot of land in Milford leased from Jennie L. Burkhardt. The bill of sale was recorded in the town clerk's office in Milford July 5 1929, and the car was delivered and placed on the plot July 9th. The receiver for the dining company was appointed September 27th, 1929, and he was made permanent receiver October 18th. The bill of sale provided that, upon failure to pay any note at maturity, all the remaining notes should at once become due and payable. On November 5th the note due October 1st was paid by the receiver under the authority of the court, together with interest and insurance as provided in the bill of sale. On that date appraisers fixed the value of the car and equipment with the lease of land, at $15,093.37, and determined the amount still due the Brill Company to be $9,790, thus showing an equity of $5,305.37. Thereafter the receiver paid the notes due November 1st, December 1st, January 1st, and February 1st in succession, with the interest charges thereon. Under order of court the receiver on December 2d, at public auction, sold the dining car and its equipment and lease for $12,500 to George R. Webb, subject to all the rights of the Brill Company as defined in the conditional bill of sale. On March 25th the Brill Company made demand upon Webb for the amount due it on the conditional bill of sale, but payment was refused, whereupon the Brill Company brought a writ of replevin and obtained possession of the car, and, by another writ against a third party, obtained certain of the equipment thereof. On or about April 1st, the Brill Company sold the car and equipment at public auction for $5,000 to the Wason Manufacturing Company, a subsidiary of the Brill Company. At this time the claim of the Brill Company under the conditional bill of sale amounted to $10,153.05, upon which it credited the amount received at the auction sale, leaving the balance of its claim $5,153.05. At the hearing in the superior court the receiver contested this claim of $5,153.05 on the grounds that, as receiver, he was not bound by the conditional bill of sale to the dining company; that that document was not recorded in the town which the statute required; and that, having elected to proceed under the bill of sale and take over the car, the Brill Company was estopped from now making claim for this balance, but the court overruled these contentions and allowed the claim. The argument and brief of the receiver in this court are contined to two general propositions, viz., that the conditional bill of sale was not binding upon the receiver because it was not recorded in New Haven; and that the Brill Company had elected to proceed to take over the property under the terms of the bill of sale and so was estopped from making the present claim for a balance due.

The articles of incorporation of the dining company state that its principal place of business is in the city of New Haven but the bill of sale was recorded in Milford where the car was located upon delivery to the Dining Company. The receiver cites Public Acts of 1927, chapter 153, now General Statutes 1930, § 4697, which provides that " all contracts for the sale of personal property, conditioned that the title thereto shall remain in the vendor after delivery, shall be in writing *** and filed within a reasonable time in the town clerk's office in the town where the vendee resides; but the provisions of this section shall not apply to household furniture, musical instruments, phonographs, phonograph supplies, radios, bicycles or property exempt from attachment and execution." He urges that this dining car not being within the exception of this statute, the record in Milford, rather than in New Haven, did not bind him. But Public Acts of 1927, chapter 277, which was passed after chapter 153, provided that " any contract for the sale of a portable garage or other portable building *** conditioned that the title thereto shall remain in the vendor after delivery, shall be in writing *** and filed within a reasonable time in the office of the town clerk in the town where the real estate upon which such articles are placed is situated." Section 1. Though it is not found as a fact that this car was a " portable building" within the meaning of this statute, the trial court treats it as a fact, and we find no difficulty in holding...