The majority opinion states that the conditional bill of sale and the unpaid note were assigned by the then owner (Sarah Crosky) to the plaintiff, and it thus summarily disposes of one of the conclusions of the trial court, that the title of the plaintiff was defective, because the assignment was made by Simmons, who did not then own them. I think it well to explain the reason for overruling this conclusion. The facts were these: Simmons had sold the business, including his rights under the bill of sale and note, to Sarah Crosky. She continued to conduct it under the same name he had used, Browning-Simmons, and continued to employ, as agent and general manager, Charles Leviston, who had been acting in that capacity for Simmons. Leviston, acting as the agent for Sarah Crosky, negotiated the sale of the bill of sale and note to the plaintiff. The assignment of *Page 33 the bill of sale was signed "Charles B. Simmons, by Charles Leviston, Atty. as Agent as authorized" and the note was indorsed "Browning-Simmons, Charles Leviston, Atty. Duly authorized Agents for Charles B. Simmons. d.b.a. Browning-Simmons."
Leviston in the transaction was really acting for Sarah Crosky, who owned the bill of sale and note. So far as appears the plaintiff either knew this or it was a matter of indifference to it whether it purchased those rights from her or Simmons. Sarah Crosky was the real assignor and the fact that formal assignment of the bill and note purported to be made by Simmons, Leviston acting as his attorney, cannot defeat the real intent of the parties. The plaintiff acquired the rights which Simmons originally had under the bill of sale and the note. Chestnut-Hill Reservoir Co. v. Chase,14 Conn. 123, 129; Lewis v. Scoville, 94 Conn. 79, 85,108 A. 501; Massaro v. Savoy Estates Realty Co.,110 Conn. 452, 459, 148 A. 342; Whitney v. Wyman,101 U.S. 392, 396; Charitable Association in Middle Granville v. Baldwin, 42 Mass. (1 Met.) 359, 365; In re Imperial Mercantile Credit Asso., L.R. 19 Eq. Cas. 588.
In stating the facts as regards the assignment made between Scavone and the plaintiff after the latter had made demand on him, the majority opinion omits one fact which seems to me of controlling significance in working out the subsequent rights of the parties In consideration of the cancellation of his indebtedness to the plaintiff, Scavone surrendered all right, title and interest he had in the property included in the bill of sale and agreed to surrender that property, with some other articles. After that Scavone was not holding the property as conditional vendee; he could not, for instance, by paying the balance due, obtain title to it; he was holding it as bailee for the plaintiff. The vice *Page 34 of the situation would arise, if at all, out of the fact that thereafter the plaintiff permitted Scavone to continue in possession just as he had before, without any outward indication that he had ceased to hold the property as conditional vendee. In other words, any claim an attaching creditor of Scavone might have to hold the goods against the plaintiff would necessarily rest upon the application of the doctrine as to retention of possession of personal property, which applies where a vendor retains possession of goods he has sold without sufficient manifestation by change of possession or otherwise that title to them has passed from him.
The rule concerning the retention of personal property after its sale or other disposition as it developed in our law early came to be one of policy, adopted for the prevention of fraud, that fraud being the possible defeat of the rights of a purchaser or attaching creditor by a fictitious or colorable transaction, the true nature of which it would be extremely difficult or impossible for the purchaser or creditor to prove. Mills v. Camp,14 Conn. 219, 226; Kirkland v. Snow, 20 Conn. 23, 28; Colt v. Ives, 31 Conn. 35, 36; Webster v. Peck,31 Conn. 495, 500; Norton v. Doolittle, 32 Conn. 405,410; Hatstat v. Blakeslee, 41 Conn. 301, 302; Mead v. Noyes, 44 Conn. 487, 490; Huebler v. Smith, 62 Conn. 186,190, 25 A. 658. The rule is, "to a certain extent, punitive in its character, creating something in the nature of forfeiture for the violation of the policy of the law." Colt v. Ives, supra, p. 36. It is "one which has a restricted rather than an extended application, as its very rigor necessarily requires it should have." Huebler v. Smith, supra, p. 192. It has its proper application where the owner of property creates rights in another without manifesting that fact by change of possession or other lawful means such as the recording *Page 35 of instruments for which provision is made in the statutes. Adler v. Ammerman Furniture Co.,100 Conn. 223, 233, 123 A. 268.
Under the bill of sale in this case the vendor had the right upon default in payment of any of the notes to immediate possession of the fixtures and Scavone agreed to surrender them on demand. Of this the defendant was chargeable with notice by the recording of the bill of sale. Tire Shop v. Peat, 115 Conn. 187,189, 161 A. 96. To the right to take possession of them upon default in payment of the last note, the plaintiff succeeded and had made demand upon Scavone for their surrender. It was not necessary that the plaintiff should immediately exercise its right to take possession under penalty of losing its title should the property be sold by Scavone or attached by one of his creditors. Unless the arrangement entered into between the plaintiff and Scavone materially affected the rights of the parties, the defendant by its attachment had no right to hold the property as against the plaintiff. As between the plaintiff and Scavone, the only change brought about by that arrangement was the fact that Scavone thereafter held the fixtures not as conditional vendee but as bailee for the plaintiff. There was no change in the title of the fixtures, which always remained in the vendor and the plaintiff as its successor, and no change in the plaintiff's right to immediate possession of them. No one without actual knowledge of the arrangement could be misled, because the bill of sale providing that the vendor had these rights continued of record; and still less could anyone be misled who had knowledge of the arrangement, as did the defendant. To apply the rule to the situation before us would be an extension not warranted by any need to protect purchasers or attaching *Page 36 creditors and would impose a forfeiture without sound reason for doing so.
I agree with the result reached in the majority opinion but think it should be based upon the reason I have given.
In this opinion BROWN, J., concurred.