137 Conn. 424 | Conn. | 1951
Lead Opinion
This action is to recover upon an automobile collision insurance policy. The principal question is whether the trial court erred in concluding that the policy covered the automobile which was damaged.
The plaintiff was a dealer in used cars. On October 29, 1948, the defendants issued to him an automobile dealers’ policy, insuring him for one year against loss by reason of “collision or upset,” in which the coverage clause, in so far as it is relevant to the case, read as follows: “1. Coverage. The policy designated above covers automobiles owned by the insured and held for sale or used in repair service, or as demonstrators, but excludes automobiles sold under a conditional sale, mortgage, lease or similar agreement.”
On Saturday morning, August 27, 1949, the plaintiff agreed to sell and Joseph Finch agreed to buy on con
After the various papers had been signed, Finch stated that he had to have the use of a car over the weekend to drive to his family’s home in the village of Maine, New York, and that his Ford was not in proper mechanical condition to make the trip. Thereupon, the plaintiff allowed Finch to use the Plymouth to make the trip. He attached his used-car dealer’s registration plates to the Plymouth and Finch drove it off.
On Sunday, August 28, while Finch was making the trip, he was in a collision with another car near Endicott, New York. The Plymouth was damaged and it cost $529.35 to repair it. The bill for repairs was later paid by the plaintiff and the car was returned to him. On Monday, before he received the news of the collision, he had been advised that the Associates Discount Corporation would finance the conditional sale contract and had been paid the $800 on account thereof. When, later in the same day, the accident was reported to him, he returned the $800 to the finance company.
The manifest meaning of the policy of insurance is that it will cover any automobile owned by the plaintiff as a dealer until it is sold by him, if he disposes of it by absolute sale, or, if he disposes of it by conditional sale, until he delivers possession of it to the vendee pursuant to the conditional sale contract. Any car which he owns is still “held for sale” under the terms of the policy after he has agreed to sell it, if his agreement to sell is nothing more than an executory contract. It continues to be held for sale until he has completed a sale. In the case of an executory agreement to sell by absolute sale, the car continues to be held for sale until title to the car passes. In the case of a conditional sale, title does not pass upon delivery
In the present case, the agreement between the plaintiff and Finch was an executory one. Each of the parties had an unfulfilled promise to perform, and both promises were subject to the condition that the finance company would accept an assignment of the conditional sale contract. Their agreement would become executed only when the plaintiff delivered possession of the car to Finch pursuant to the conditional sale agreement. Until that time the plaintiff held the car for sale as specified in the policy. Until that time, also, the car was not an automobile which had been sold under a conditional bill of sale so as to bring it within the exclusionary clause of the policy.
The real question in the case, therefore, is whether the delivery of possession of the car by the plaintiff to Finch was a delivery in pursuance of the executory agreement for a conditional sale. That is a question of intent. All the attendant circumstances having been found as matters of fact, the intent of the parties is to be determined from those circumstances. Preston v. Verplex Co., 135 Conn. 187, 190, 62 A. 2d 860; Ives v. Willimantic, 121 Conn. 408, 411, 185 A. 427; Peterson v. Universal Automobile Ins. Co., 53 Idaho 11, 20, 20 P. 2d 1016. Aside from the finding by the trial court that the conditional sale would be consummated
The defendants further claim, although they did not raise the point on the trial, that a new trial should be granted for failure of the court to have a stenographer in attendance as required by the provisions of General Statutes, § 7591.
There is no error.
In this opinion Brown, C. J., Jennings and O’Sullivan, Js., concurred.
“Sec. 7591. stenographers m municipal courts. The judge of each municipal court having civil jurisdiction shall call in a competent stenographer, who shall be sworn to the faithful performance of his duties, to take the evidence in every civil action in which the right of appeal lies directly to the supreme court of errors unless all the parties in any case or matter pending therein shall agree in writing that no stenographic record of the proceedings shall be made. Should necessity require, any stenographer called in under the provisions of this section shall employ competent assistants to act for him in such court, who shall also be sworn and be subject to the same rules and duties as such stenographer. The provisions of sections 7732 and 7734 shall apply to any stenographer appointed under the provisions of this section.”
“Sec. 7731. judge of municipal court may call in stenographer. Whenever the judge of any municipal court shall deem it necessary, he may call in a competent stenographer to take the evidence in any civil action or criminal prosecution pending in the court over which he presides. Should necessity require, any stenographer called in under the provisions of this section shall employ competent assistants to act for him in such court, who shall also be sworn and be subject to the same rules and duties as such stenographer.”
Dissenting Opinion
(dissenting). I do not agree with the result reached in the majority opinion. The decision of the case turns upon the interpretation of the insur
The majority opinion points to two very significant facts bearing upon the question of the consummation of the transaction. One is that no copy of the conditional sale contract was delivered to Finch. There is no finding on that point. If the approval of the finance company was required, it is fair to assume that the plaintiff would have kept all of the copies while awaiting receipt of that approval. It is also stated that it was not under a claim of right that Finch took the automobile. Whether he claimed right to possession or not, the plaintiff gave him possession of the car. In every contract of sale, delivery of possession of the article sold is of paramount significance. Delivery manifests the intention of the parties better than their words. The fact that the plaintiff attached his dealer’s registration plates to the Plymouth rather than those belonging to Finch is of no significance. General Statutes, § 2400, permits a dealer to loan his registration plates when a “person shall have purchased a motor vehicle, the registration of which by him is pending.”" This was apparently the situation, for Finch had left an
The car was no longer owned by the plaintiff and held for sale by him within the intent of the policy. Peterson v. Universal Automobile Ins. Co., 53 Idaho 11, 21, 20 P. 2d 1016, note, 133 A. L. R. 787; Garuba v. Yorkshire Ins. Co., 233 Iowa 579, 581, 9 N. W. 2d 817; Continental Ins. Co. v. Michaels, (Tex. Civ. App.) 13 S. W. 2d 465; see Concordia Fire Ins. Co. v. McCarty Motor Co., (Tex. Civ. App.) 45 S. W. 2d 446. Lockwood v. Helfant, 126 Conn. 584, 13 A. 2d 136, on which the plaintiff particularly relied, was a jury case decided on disputed facts. The case at bar rests upon facts found.
Where there is a conditional sale, with delivery to the buyer, title remaining in the seller until the performance of certain conditions, the seller holds the title as security for the purchase price; but the buyer, because he has the use and dominion of the automobile, bears the risk of loss. Baker v. Brown & Thomas Auto Co., 101 Conn. 575, 577, 126 A. 703; O’Neill-Adams Co. v. Eklund, 89 Conn. 232, 235, 93 A. 524.
I concur in that part of the majority opinion which disposes of the defendants’ claim of error predicated upon the failure of the court to call in a stenographer as required by General Statutes, § 7591.