137 A. 756 | Conn. | 1927
The essential facts, found by the trial court, are as follows: On August 4th, 1920, the plaintiff loaned $10,000 to The Feeney Tool Company, Inc., and the company gave the plaintiff its demand note secured by a third mortgage on its real estate. On December 3d 1921, the plaintiff loaned the Tool Company the further sum of $3,000, upon an unsecured note due March 10th, 1922. On April 3d 1922, Karl Auth, owner of the second mortgage on the real estate, brought an action of foreclosure. On April 6th, 1922, the Tool Company executed to the plaintiff, as additional security for the notes of $10,000 and $3,000, a chattel mortgage upon personal property (machinery and tools) located in the Tool Company's factory building. On June 2d 1922, judgment of foreclosure was rendered in the action of Karl Auth, fixing the law day of The American Bank and Trust Company as March 7th, 1923. On February 6th, 1923, Frank L. Wilder was appointed temporary receiver of the Tool Company by a judge of the Superior Court, qualified, and continued to act as such until appointed trustee in bankruptcy. On March 7th, 1923, plaintiff, by redemption of the Auth mortgage, became vested with *161 the title to the factory building under the foreclosure decree and took actual possession of the same, together with possession of the personal property described in the chattel mortgage. On March 8th, 1923, an involuntary petition in bankruptcy was filed against the Tool Company; on May 17th, 1923, the company was adjudicated a bankrupt, and on June 1st, 1923, Wilder was appointed trustee in bankruptcy.
Pursuant to stipulation of the parties to the present action that the property described in the chattel mortgage be sold and the proceeds held by the clerk of the court pending trial of the case, on August 7th, 1924, the personal property was sold to J. L. Lucas Son for $5,200. Thereafter the defendant Wilder, trustee, made claim against Lucas Son for personal property contained in the factory building in excess of that described in the chattel mortgage, taken by Lucas Son, and the latter paid the trustee $300 in settlement of the claim.
The chattel mortgage described the personal property as follows: "The contents of a two-room machine shop located at #751 Central Avenue in Bridgeport, consisting of and including: 14 lathes, 2 planers, 4 drilling presses, 5 grinding machines, 21 foot presses, 2 furnaces, 5 shapers, 5 milling machines, 5 power presses, 3 safes, 1 filing machine, measuring instruments, and all and sundry the tools, equipment and appurtenances thereof." At the time the chattel mortgage was executed there were actually in the machine shop 16 lathes, 5 drilling presses, 7 grinding presses, and 22 foot presses, as well as the other articles specifically mentioned in the mortgage.
The court found, further, that at the time the chattel mortgage was executed and delivered the Tool Company was not in failing circumstances.
The claims of the appellant, in brief, are that he, as *162 receiver, had possession of the mortgaged personal property before March 7th, 1923, when the plaintiff is found to have taken possession; that he, as such receiver and subsequently as trustee in bankruptcy, retained such possession; and that the chattel mortgage is invalid by reason of inadequate description of the property attempted to be covered thereby.
The principal correction of the finding sought by the appellant is the elimination therefrom of the several statements to the effect that on March 7th, 1923, the plaintiff took possession of the personal property described in the chattel mortgage and retained the same until it was sold, and that defendant Wilder never had actual possession thereof either as receiver or as trustee in bankruptcy. The uncontradicted testimony of the president of the plaintiff bank is that, on the date when the bank redeemed the Auth mortgage, the key to the factory building in which the machinery was located was delivered to the plaintiff by Feeney, and we find in the record no direct evidence of physical possession of the machinery by or for Wilder, at any time, although in June, 1923, appraisers made an inventory of the property in the bankruptcy proceedings. It cannot be said that the finding of actual possession by the plaintiff is unsupported by evidence, and so it must stand, and the requested finding that the property was in the actual possession of Wilder cannot be made.
It is undisputed that Wilder, upon his appointment and qualification as receiver, made an inventory in which the property described in the chattel mortgage was included; that the lathes, presses, and some of the other articles of machinery bore model or serial numbers which might have been referred to in describing them; and that there was no method of distinguishing the lesser number of lathes and presses included in the *163 mortgage from the larger number on hand at the time. These facts are, accordingly, added to the finding. There is sufficient evidence to support the finding (which is also attacked) that at the time the chattel mortgage was executed the Tool Company was not in failing circumstances. There is evidence of contention between Feeney and the Auths as to management, but no indication of an intent, at that time, to abandon the business or that the mortgage was made with a view to insolvency.
The principal claim of the appellant is that the chattel mortgage is invalid by reason of inadequate description of the property covered thereby, for the reason that there is no way of identifying and separating the lathes and presses mentioned and included in the mortgage out of the larger number of machines of these kinds which were in the Tool Company plant. It is only when a description is manifestly too meager and imperfect or uncertain to serve as an adequate means of identification that the court can adjudge the description insufficient as a matter of law. 5 R.C.L. p. 422. In Croswell v. Allis,
Doubtless the individual machines might have been more particularly described by reference to name, model or serial number, or otherwise, but the reason why such more detailed description was not deemed necessary is obvious from the record. It is apparent that the parties intended the mortgage to cover all the machines in the shop, in which case identification as between the individual machines would have been superfluous; the understatement in numbers was clearly accidental. The situation is similar to that presented in Croswell v. Allis, supra, and typically one contemplated by § 5207 of the General Statutes. Furthermore, the descriptions here in question differ in no essential respect from many of the items in the mortgage referred to in City National Bank v. Stoeckel,
We hold, therefore, that the mortgage is not invalid because of inadequacy of description, unaided by such curative effect as would be afforded by effective delivery of possession of the property to the mortgagee, under Aldrich v. Higgins,
There is no error.
In this opinion the other judges concurred.