Forbes v. Marsh

15 Conn. 384

• Court: Supreme Court of Connecticut
• Decided: June 15, 1843
• Status: Published

Opinion

Williams, Ch. J.

It was not denied that the coach was once the property of the plaintiff; but it was claimed, that by the writing of the 11th of June, 1839, it became the property of Peck; that the instrument was in the nature of a sale and mortgage, and ought so to be treated ; and that, if this was not so, yet the contract of the 1st of August placed it out of the hands of the plaintiff so that he could sustain no action; that the possession by Peck, was, in its nature, fraudulent and void as against creditors. These propositions were not assented to, by the court; and a verdict was given for the plaintiff against the defendant Marsh, who moved for a new trial.

-By the contract of the 11th of June, Peck promised, in consideration of the plaintiff’s promise, to pay to him 200 dollars, by the 1st of August, 1839 ; and the plaintiff promised, on Peck’s performance, to sell and deliver to him the coach, then in Peck’s possession, during said term. Payment might be made, by an indorsed note upon interest. The defendant claimed, that said agreement ought to be construed as substantially a sale of the coach, with a re-conveyance by way of mortgage. The plaintiff contended, that there was no sale intended, and none made ; that it was but an agreement to sell at a future day, and upon certain conditions to be performed by Peck; and that such was the manifest intention of the parties. The defendant claimed, that it had all the incidents of a sale and mortgage ; that Peck was bound, at all events, to pay the principal; and that he was to pay interest upon it; that he was to have the use of the property without accountability; and that the title would be complete upon payment at the day. It certainly is not necessary to deny, that a sale of this kind may have some resemblance to a mortgage ; but that there may be conditional sales which are not strictly mortgages, is equally undeniable. Thus, where a quantity of candles was sold and delivered, but on the express declaration that the vendor should not consider them as sold until he received further security; it was held, that the property continued in the vendor. Hussy v. Thurston & al. 4 Mass. Rep. 405.

So where wool to manufacture was delivered by A to B, at 75 cents pr. lb. to be paid in 6 months, to remain the property of A, till paid for; it was held, that the property remained in A, against B’s creditors, as well as himself. Barrett v. Pritcherd, 2 Pick. 512.

It is claimed, however, that these and many other cases in Massachusetts of a similar character, are peculiar to that state. The court think otherwise, and that they are based upon the principle of the common law, which construes contracts according to the intentions of the parties, and allows men to contract according to their own pleasure, unless contrary to the policy of the law or certain technical rules. The owner may dispose of his goods to whomsoever he pleases, at any time and in any manner. 2 Bl. Com. 447. For every man’s bargain ought to be performed as he intended it. When he relies upon his remedy, it is but just that he should be left to it, according to his agreement; but on the contrary, there is no reason why a man should be forced to trust where he never meant it. Per Holt, Ch. J. Thorpe v. Thorpe, 1 Salk. 171. For the agreement of the minds of the parties is the only thing the law respects in contracts. Plowd. C. 140. Where then H agreed to take MY sheep to pasture, for a time, and if, at the end of that term, he should pay H so much for the sheep, he should have them; this was held to be not a sale, but a contract to sell; and a sale by H was held to be valid. Mires v. Solebay, 2 Mod. 242. And where a bill of lading of goods - was made to V, if he accepted and paid a draft also sent; the bill and draft were presented to V; he accepted the draft, and separated it from the bill of lading, and sold the latter for value, but did not pay the draft; it was held, that as V had not fulfilled the condition, the title to the goods never vested in him. Barrow v. Coles, 3 Campb. 92. And in a more recent case, where wheat had been sold and shipped for the plaintiff, on his account and risk, and an invoice and bill of lading sent to him, on receipt of which he was to send a banker’s draft ; the plaintiff failed to do this; and the court held, that the property in the wheat passed; that actual delivery should depend upon a compliance with the condition; and therefore, that the defendant was justified in preventing such a delivery,. Wilmshurst & al. v. Bowker & al. 2 Man. & Gran. 792, (40 E. C. L. 629.) In Patten v. Smith, 5 Conn. Rep. 106. 201. Marsh sold his types to Storrs, who was to pay in six and nine months, and if the first payment was not made in six months, it was at Marsh’s option to take back the property although it was held, that Marsh could not rescind the contract, at any future time, yet at the end of six months, he could rescind or affirm it. And in a recent case in the state of New- York, where Strong, the owner of a canal boat, called Signal, agreed to sell the same to another for 300 dollars, provided that sum was duly paid, at a future time specified, by carrying freight, &c., and the boat was attached as the property of the vendee. Nelson, Ch. J. says, he was at first inclined to view the contract as a mortgage, and the interest a subject of execution but on the whole, he concluded, that 1 the soundest view of it was, that it was a conditional sale, in / which aspect the property did not vest in the vendee, till performance of the condition — a condition which the vendee had a right to impose for his own security. Until fulfilment of the condition nothing passed, though he had possession, and a right of possession for a specific object. Strong v. Taylor, 2 Hill 326. In this case, as in that, there is a promise to sell ata future day, if certain payments were made by the vendee ; and possession was in both cases given. There is no difference in these cases, except that here it is admitted, that 70 dollars, part of the purchase money, was paid, when this writing was given; and we cannot see how that should change the arrangements the parties have made as to the time when - the title to this property should vest. It was clearly their intention, that this should take place only when the purchaser had done what he agreed to do*on his part; and we know of no principle, and have been shewn no case, to prove, that this agreement was not perfectly fair as between the parties.

Two cases, however, have been relied upon, in the English books, by the defendant, which require notice. One is Tarling v. Baxter, 6 B. & C. 360. (13 E. C. L. 199.) The plaintiff bought of the defendant a stack of hay standing in the field, 4th January, 1825 ; and the defendant gave a note of the tenor following : “I have this day agreed to sell J, Tarling, a stack of hay standing on C. field, at the sum of 45/. —the same to be paid the 4th day of February nextand the buyer gave this note : “ I, this day, agree to buy of Mr. J. Baxter a stack of hay standing in C. field, at the sum of 45i. j — the same to be paid on the 4th day of February next, and to be allowed to stand on the premises until the 1st day of May next; the same hay not to be cut till paid for. Jan. 4th 1825.” In this case, the court recognize the idea of a prospective sale, but hold, that the one in question was an immediate one, and place if? upon the intention of the parties. The rule, they say, is, when nothing is to be done by the vendor, the title vests; and the note of the buyer in that case, they say, imports an immediate, perfect, absolute agreement of sale. The true construction of the agreement is, that the parties intended an immediate sale ; but in this case, Peck promises to pay, not in consideration of the sale, but of the promise ; and the plaintiff promised, in conisderation of Peck’s performance, to sell and deliver the coach in question. The parties, then, contemplated some act to be done by the plaintiff; and though the coach was in Peck’s possession, yet the contract negatives its being in his possession as his own. It is, therefore, apparent, that the plaintiff could not have intended an absolute sale, but a sale depending entirely upon performance on the part of Peck.

In Howes v. Ball, 7 B. & C. 481. (14 E. C. L. 90.) H. agreed to give B. 100l. for a new stage coach ; in payment of which II. was to give four bills of 25/. each ; and agreed, that B. should hold a claim upon the coach until the debt should be fully paid. The court say, taking into consideration the agreement, the delivery of the bills bv It, to B., and the dehv- ~ . , ' , ■ "Í , - ery of the coach by tí. to li., we think the transaction ed to a sale of the coach so as to transfer the property, There the bills were delivered for the coach, and the coach delivered under the contract; and instead of contemplating a new delivery upon payment, they treat it as delivered ; and the purchaser contracts, that the seller shall have a claim or lien upon it. We do not think, therefore, that these cases interfere with the principles adopted in the case before us.

It was further proved, in this case, that on the 1st of August, Peck not having performed, a new arrangement was made bona fide between the parties, that Peck should, in consideration of 30 dollars paid, be allowed to use the carriage to transport the mail and passengers ; but no term was fixed, and Peck continued to use it till it was attached. It is difficult to see how Peck could, after making the agreement which amounted to the acceptance of a lease of the coach, claim it, under what he calls a sale.

But it is said, this contract must be void as against the creditors jaf Peck; as there is the same danger of fraud as where possession is retained by the mortgagor. We are not disposed to say, that there is no danger of fraud, in such cases ; nor that they should not be closely watched to guard against fraud. A similar objection would hold good in many casesj where the possession of personal property is in one man and the ownership is in another; as where one lets his horse to a neighbour to go to mill, or a livery stable keeper lets his horse to a rogue. But the rule is not universal, that possess-; ion is the only evidence of title to personal property. On; the contrary, much of such property may be securely placed in the hands of others, without becoming liable to be seized for the debts of the possessor.

The rule of law making the property of one man liable for the debts of others in whose hands it is found, is applicable particularly to that property which was once owned by the possessor, and is by him sold or mortgaged to another, and then suffered to remain in his possession. In such cases, possession is evidence of fraud, because there is not given to the world the usual evidence of a change of title. The vendor or mortgagor is, therefore, presumed to remain owner of the property, as heretofore. It is otherwise in cases like that before us. The vendee comes into possession of property, - which was known to belong to another man. Whether, therefore, the vendee had borrowed it, or hired it, or purchased it, becomes a matter of enquiry, and ought to be ascertained, by him who proposes to trust his property upon the faith of this appearance ; for the law offers its protecting shield to those who attempt to protect themselves. Accordingly, we find, that all these cases of conditional sales made bona fide, have been held good as against attaching creditors, as well as against the parties. In the cases above cited from New-York and Massachusetts, the claim was made by creditors. So too, in the cases of Vincent v. Cornell, 9 Pick. 158. Fairbanks v, Phelps, 2 Pick. 535. Patten v. Smith, 5 Conn. Rep. 201. the same principle was recognized, though the cases may have been determined upon other points. We think, therefore, that the judge placed the case upon the true ground, that this writing was not a sale, but only an agreement for a sale ; but that if it was colourable, not made in good faith, but intended to conceal the property from Peck’s creditors ; or if there was a design to make it appear his, that he might get credit upon it; or if the plaintiff had held out Peck as owner, or suffered him so to hold out himself — then the attachment would prevail against the claim of the plaintiff

2. It was also claimed, on the part of the defendant, that on the 1st of August, a new contract was entered into, by which the stage coach, in consideration of 30 dollars, paid by Peck, was leased to him, to run upon that road ; and therefore, the plaintiff could not sustain this action. It was also claimed, that as the officer had delivered the property attached to Peck and Johnson, taking their receipt therefor, that there, was no conversion. The court below was of opinion, that if the defendant took the property tortiously, that, of itself, would contitute a conversion; and a delivery to Johnson and Peck, upon their receipt, did not change at all the character of the previous act; which opinion is certainly correct.

3. That court further, pro forma, the better to decide the real merits of the case, charged the jury, that if they found the coach was leased, by the plaintiff, to the defendant, for an indefinite time, the lease was at the pleasure of the parties; and the plaintiff might maintain this action, although he had not, before the attachment, demanded the carriage, or given notice to Peck that he chose to terminate the contract. Upon this point, we think a mistake has occurred. That the . owner of furniture or other personal property, who has leased it, for a certain time, cannot, during the term, maintain tro-ver, is a well settled principle. Gordon v. Harper, 7 Term Rep. 9. Paine v. Whitaker, Ry. & N. 99, (21 E. C. L. 390.) Smith v. Plomer, 15 East, 607. For the plaintiff must have not only the right of property, but the right of possession. By the agreement of the 1st August, this carriage was leased to Peck, and although no fixed time was set, yet as 30 dollars was received therefor, it must be considered as an agreement on the part of the plaintiff, that Peck should have the use of it, for such a length of time as this sum would compensate for; in other words, that Peck should have an interest or term therein worth 30 dollars ; and as that is certain which can be rendered certain, Peck must be considered owner pro tempore, and so the possession could not be in the plaintiff. It is true, that we do not know when the term of the lease would expire, as we do not know what would be a fair rent for this carriage for a year, or a month; but we have no reason to suppose, that 30 dollars would not purchase a larger term than from the 1st August to the 22d November, the day of the attachment. At all events, this is a question to be submitted to a jury. Peck, by the payment of 30 dollars, had acquired an interest in this carriage, and a right to use it until he had received the value of the consideration paid ; and during that time, the plaintiff cannot complain that it was taken out of his possession. It is not necessary, therefore, to determine, whether any demand on Peck was required: it is enough that the possession of the plaintiff cannot be disturbed, till his right of possession returns ; and as he parted with it for an indefinite period, he must shew, that it has revived. The court, therefore, are of opinion, that a ncw'trial must be granted.

4. On the trial, the plaintiff offered to prove, that the defendant Marsh directed the coach to be attached, ori the 22d of November, by the witness; and that the defendant Sedgwick was not there, and knew nothing of it.; and afterwards, for the purpose of charging Sedgwick, as well as Marsh, the plaintiff offered to prove, that the coach was detained under that attachment, till it was sold by the defendant Sedgwick, by the direction of Marsh, on the execution. The defendants objected to this evidence ; there being but one count in the declaration, and the plaintiff having, in support of that, proved Marsh only guilty. It was ruled not to be competent for the plaintiff to prove a distinct conversion, by Marsh and Sedgwick, in the sale ; and for this, the plaintiff asks a new trial. The court is of opinion, that he has no ground of complaint. The plaintiff might have proved his charge of conversion against Marsh, by shewing that he caused the property to be attached ; or he might have proved it against Marsh and Sedgwick jointly, by shewing the sale by Sedgwick, under Marsh's direction. He chose the former; and unless he expressly waived that, and as upon one count general damages must be given, Sedgwick might have been made to pay damages for a trespass he never committed. Aaron v. Alexander, 3 Campb. 35. Sedley v. Sutherland, 3 Esp. Ca. 203.

Another question was raised, by the plaintiff’s motion ; but as it was not insisted upon, in the argument, we consider it as abandoned.

In this opinion the other Judges concurred.

New trial to be granted.