| Conn. | Jan 21, 1898
We think the trial court decided correctly as to the judgment lien. At the time that lien was
The trial court has, in effect, found that the Cheshire Manufacturing Company had discharged the said D. and H. Pratt from the payment of the said sum of $70 paid for taxes; and this finding is on evidence to which no objection was made. We think this finding was conclusive.
As respects the twenty notes mentioned in the complaint, the only question was and is, how many of them are unpaid ? Are there seven unpaid; or are there only three or four? As to these notes the plaintiff is the assignee of the Cheshire Manufacturing Company. He has just such right in the notes and in the mortgage—neither greater nor less—as that company would have if it was the plaintiff. Indeed, to ascertain the plaintiff’s rights in this case, we must inquire what rights of that company were conveyed to the plaintiff by its assignment to him. There is no claim that he has parted with anything since he became the assignee. The right so assigned to the plaintiff will be made to appear by an examination of the several transactions which have been had between the said company and the said D. and H. Pratt, and they are as follows : On the 16th day of August, 1886, the said company gave to the said Pratts a bond for a deed of the land now in question. The condition of this bond was that the said Pratts should pay to said company their sixteen certain notes, each for the sum of $437.50, amounting in the whole to $7,000, and payable as was therein specified. On the same day the said D. and H. Pratt made and delivered to the said company eight other notes, each for the sum of $625, amounting in the whole to $5,000, and secured the payment of said last mentioned notes by a chattel
In 1891 negotiations were had between the said company and the Pratts, which resulted in a compromise. The said sixteen notes were surrendered, and the company gave a warrantee deed of the land to the Pratts. The Pratts, in payment therefor, made the said twenty notes described in the complaint, and secured the payment thereof by the mortgage now in suit and also by a chattel mortgage on the machinery before mentioned. This machinery was in the factory on the land mortgaged. On the day of , 1892, the factory and machinery were totally destroyed by fire, and some dispute arose as to whom the insurance money should be paid. On the 14th day of May of that year, at a meeting at which the said company was present by its duly appointed officer, and its attorney E. P. Arvine, Esq., and at which the said D. and H. Pratt were present with their attorney, N. R. Bronson, Esq., an agreement was entered into and executed in duplicate, the material parts of which are as follows: “This agreement witnesseth: That whereas said Herbert Pratt and David Pratt are indebted to said Cheshire Manufacturing Company in sundry notes secured by mortgage on real and personal property situated in said Naugatuck; and whereas a certain factory situated in said Naugatuck, being a portion of the real estate upon which the said Cheshire Manufacturing Company held a mortgage securing twenty of said notes, was consumed by fire, and a portion of the machinery likewise mortgaged to said company to secure notes was also destroyed; and whereas said property was insured by policies payable to said Cheshire Manufacturing Company as their interest might appear, and also to the said Pratts; and whereas said losses have been adjusted, and there is due on account of the same on said policies the. sum of three thousand four hundred dollars: Now therefore it is agreed that said three thousand four hundred dollars shall be
This agreement was dated May 14th, 1892, and was executed by all said parties. It is conceded and is found that the said Pratts did not within six months after said agreement pay, nor have they at any time since paid, said sum of $600. At that time it was supposed that the sum to be paid on the insurance policies was $3,400. The amount in fact paid was a little less, viz. $3,383. At this time there was due from D. and H. Pratt to the said company the said twenty notes mentioned in the complaint, and the sum of $542.82 on the last note of the said series of eight notes dated on the 6th day of August, 1886, and secured by the chattel mortgage; in all twenty-one notes. The last mentioned note was not then in the possession of the said company. It was in the hands of its agents, Porter Bros. & Co.-, for collection, and was to be recalled from said agents by
“New Haven, Conn., May 17th, 1892.
“Messrs. Terry & Bronson,
“ Grentlemen: Inclosed you will find the New York note, with statement of Porter Bros., amount due, $542.82. We have received from the insurance companies $3,883, not $3,400—$3,383.00 less $542.82 leaves $2,840.18 towards canceling the notes secured by real estate ; that is to say, the 20 notes.
“ Thirteen of these notes amount to $2,600.00. Interest to May 14, ’ 92, 6% $122.46. Total $2,722.46. $2,840.18 less $2,722.72, leaving $117.72 to be indorsed on the 14th note.
“I send the old note and the 13 secured by mortgage on. real estate, and have indorsed $117.72 on the 14th note.
“Respectfully yours, E. P. Arvine.”
This letter with the notes included was received by Mr. Bronson and by him made known to his clients, the Pratts, or to one of them. Neither Mr. Bronson nor either of the Pratts made any objection to the application of said insurance money which had been made by the Cheshire Manufacturing Company as indicated in said letter, till the trial of this case, a period of nearly five years. On the 21st day of July, 1892, the Cheshire Manufacturing Com
No payment, either of principal or Mterest, has been made on the said seven notes—the last to become due of the said series of twenty—since the said 14th day of May, 1892. They are all still due and unpaid; and there is mterest due from said May 14th, 1892, to April 14th, 1897, amounting to the sum of $315.22.
The said Cheshire Manufacturing Company conveyed all ■ its interest in said seven notes and in the mortgage security therefor, on the 3d day of October, 1896, to the plaintiff, who has been ever since and is now the owner of the same.
On the 28th day of May, 1894, the defendant Curtis Thompson loaned to the said D. and H. Pratt the sum of $570, and to secure the note therefor took a second mortgage on said land. At that time Thompson examined the land records. The Pratts showed him the said agreement of May 14th, 1892, and represented to Mm that the sum of $3,400 had been paid on said twenty notes, so that there was then due on the said notes and secured by the prior mortgage, only $600. The mortgage to Thompson was at once recorded.
Upon the trial the defendant offered the testimony of the said David Pratt and Herbert Pratt, and claimed to have proved thereby that it was the intent of the parties to the said agreement of May 14th, 1892, not to have any part of the msurance money applied in payment of the said $542.82 note. In rebuttal of tMs testimony, the plamtiff offered the letter of May 17th, 1892, and in connection therewith the testimony that since said letter was received the Pratts had never objected to the application of the insurance money by the ChesMre Manufacturing Company, as was therein stated.
We think this letter with the evidence was properly admitted. If the Pratts really understood that the said note was not to be paid out of the insurance money, it is incredible that they should not have so stated when tMs letter came to Mr. Bronson. Their conduct then was an admission that
. The defendant Thompson claims that the plaintiff is es-topped to assert that there is more than $600 due on said series of twenty notes. We are not able to find any ground for this claim. The recording of the mortgage to Thompson did not affect any right of the Cheshire Manufacturing Company in the land, or in the unpaid notes. The plaintiff sues to enforce a right which came to him from the Cheshire Manufacturing Company. No estoppel can exist against him unless one could have been set up against that company had it been the plaintiff. An estoppel by conduct always presupposes error on one side and fault or fraud on the other. Morgan v. R. R. Co., 96 U.S. 716" court="SCOTUS" date_filed="1878-03-25" href="https://app.midpage.ai/document/morgan-v-railroad-co-89757?utm_source=webapp" opinion_id="89757">96 U. S. 716, 720. However much the defendant Thompson may have been in error, there is not the slightest pretense of any fault or fraud on the part of the .Manufacturing Company, nor, indeed, on the part of the plaintiff.
There is no error.
In this opinion the other judges concurred.