Crocker-Wheeler Co. v. Genesee Recreation Co.

The plaintiff claims to own and seeks to recover of the defendant three electric generators, which were furnished and delivered by the plaintiff to the James McDonell Company under a contract of conditional sale containing the provision that the title should remain in the plaintiff and not pass to the purchaser until fully paid for in cash. The purchase price was $1,990, two-thirds of which remains unpaid.

The contract is in writing, but was not tiled as required by the statute relating to conditional sales to make that provision of the contract effective as against subsequent purchasers in good faith.

The James McDonell Company sold the generators to the Genesee Amusement Company, and they were installed upon the premises of the latter company in the city of Rochester. Subsequently the amusement company became insolvent and the trustee in bankruptcy sold its assets, including the generators, to three individuals, who in turn sold the same to the defendant. The trial court directed a verdict for the defendant, to which the plaintiff excepted, and the exceptions were ordered to be heard here in the first instance.

It is now contended on behalf of the plaintiff that the two larger generators were not accepted by the McDonell Company or any of its successors in title. I think the acts of the plaintiff before the action was commenced, as well as the allegations of its complaint, are to the contrary. While the amusement company and its successors have claimed that the generators did not come up to the contract, and changes have been made by the plaintiff from time to time to make them satisfactory, and the amusement company has withheld $1,500 of the purchase price coming to the McDonell Company from the amusement company to protect the latter against damages for the generators not coming up to contract; the generators have been left installed upon the premises and the plaintiff’s claim to recover possession thereof has been based upon its retention of the title under the conditional contract of sale. That was the claim of the plaintiff when it demanded possession, and upon that theory the action was brought. I think the point which the plaintiff now makes is not well taken.

It further contends that the statute relating to the filing of conditional sales contracts does not apply, for the reason that the gen-

The generators were delivered by the plaintiff to the amusement company by the direction of the McDonell Company, about three months after the date of the contract, and ¡lermanently affixed to the foundation or base and each connected with an engine, making them a part of the plant in the building of the' amusement company. I think they were attached to the building within the meaning of the act, and that the failure to file the contract made the sale •absolute as to subsequent bona fide purchasers or incumbrancers of the premises on which the building stands.

It can be found from the evidence that not only the amusement company had notice of the conditional sale, but that the persons to whom the generators were sold by the trustee in bankruptcy likewise had notice thereof, as well as the defendant corporation which was subsequently formed. The contract was submitted for approval to the architect employed by the amusement company before it was made. He examined it, approved the specifications and agreed to let the McDonell Company purchase the generators and put them in. A written notice of the terms of the contract was served upon the treasurer of the amusement company about the time or soon after the delivery of the generators to the latter, and the treasurer called the attention of the president to the notice. The terms upon, which the generators were purchased were necessarily involved in the discussions, relating to the generators, had between the representatives of the various companies interested. The three individuals to whom the generators were sold by the trustee in bankruptcy were at that time directors of the amusement company, one of them being its president, and afterward, together with others, they formed the defendant corporation and became directors thereof; and they were directors of the defendant corporation at the time the sale was made by them to it. There are other circumstances tending to show that the subsequent purchasers had notice of the conditional sale, to which I need not allude. I think it clear that the question of good faith was a question of fact, and that a verdict should not have been directed for the defendant.

As regards the trustee, he acquired no better title than his bankrupt had ; he was- not a bona fide purchaser within the provisions of the act under consideration. (Hewit v. Berlin Machine Works, 194 U. S. 296 .) Counsel for the defendant urges that the trustee not only acquired the rights of the amusement company, but as well those of its creditors. Very likely that is true, but the answer to that suggestion is that, unlike the provision relating to the filing of

The plaintiff’s exceptions should, therefore, be sustained and the motion for a new trial granted, with costs to the plaintiff to abide the event.

All concurred.

Plaintiff’s exceptions sustained and motion for new trial granted, • with costs to plaintiff to abide event.