153 A. 658 | Conn. | 1931
On or about November 9th, 1926, the Burritt Motor Sales Service Company sold an automobile to Ocial Cox, who gave a note for the unpaid balance of the purchase price, payable in monthly instalments, and the parties executed an instrument entitled "conditional sale contract," designated in this action as Exhibit B. This note and contract were assigned by the Burritt Company to the plaintiff and the latter, in consideration thereof, advanced $521.52 to the Burritt Company. The contract and assignment were recorded in the town clerk's office in New Britain, where all the parties were located. After making payments on account aggregating $220.52, Cox became in default, and on June 13th, 1927, executed, with the Burritt Company, a new conditional sales contract, which, on or about June 22d 1927, that company assigned to the defendant, and the latter advanced to the Burritt Company the money for a second financing of the automobile. The plaintiff had no knowledge, at the time, of this transaction, nor did the defendant have any actual knowledge of the original sale to Cox or of the note or conditional bill of sale or of the assignment thereof to the plaintiff until May, 1928, when the plaintiff notified the defendant of its claims thereunder. Cox made no payments to anyone after the transactions in June, 1927, and on August 20th following the defendant took possession of the car and sold it for $400. The plaintiff endeavored to locate it in order to repossess, but without success, and on July 20th, 1928, made demand of the defendant for the value of the car.
Upon the facts found (most of those material to the questions raised by this appeal being stipulated by the parties) the trial court held that title to the automobile was vested in the plaintiff from November 9th, 1926, with right of possession upon breach of the contract, *615 Exhibit B, and that the assumption of possession and the sale of the car by the defendant constituted a conversion thereof. The appeal attacks these conclusions, also the correctness of the measure of damages adopted.
The first and principal contention of the appellant is that under the contract, Exhibit B, the title of the automobile did not remain, after delivery, in the vendor and its assignee, the plaintiff, but thereupon passed to the vendee, Cox, subject only to a condition subsequent in the event of default in some of the respects stipulated, and therefore, as to the defendant, constituted an absolute sale. General Statutes, §§ 4697, 4699.
The contract does not expressly state that title shall remain in the seller, or its assignees, until the conditions have been fully performed — a provision usually found in agreements of this kind. However, the construction to be accorded the instrument is dictated by "the intent of the parties as disclosed by the writing when read in the light of the surrounding circumstances under which it was executed." Stalker v.Hayes,
The second claim of the appellant is that even if the contract be so construed, yet the dealings of the defendant with the automobile did not constitute a conversion. An unauthorized assumption and exercise of right of ownership over property belonging to another, to the exclusion of the owner's rights, is a conversion. "The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm." Gilbert v. Walker,
Neither is the claim sound that, notwithstanding, it was incumbent upon the plaintiff to condone or ignore the defendant's intervention and trace the car to the ultimate possessor — the defendant's vendee or his successor in interest — and exercise its right of repossession.
The further question relates to the measure and amount of damages. The amount to be awarded is "the value of the goods at the date of the conversion" (Kuzemka v. Gregory,
The case is remanded to the Court of Common Pleas with direction to enter judgment for the plaintiff for $362.38 with interest from August 20th, 1927.
In this opinion the other judges concurred.