Kugel v. Angell

There is manifest error. The only permissible conclusion from the facts on which the judgment is based, in connection with the facts stated in the finding for appeal, is that on February 27th there was a completed purchase and sale of goods; that the plaintiff then agreed that the defendant might retain possession of the goods until a reasonable time had elapsed for the presentation for payment of the check, given in lieu of cash; and that the defendant then agreed to present the check for payment without delay, and to deliver the goods for transportation directly after payment and as soon as he "found out" or "knew" that the check was good. The check having been presented by his agent, the Windham National Bank, and the agent having received the money on March 1st and placed it to the credit of defendant's account, he could not deny that he had found out and knew of the payment of the check. Moreover the plaintiff, engaged in the dry goods business in Willimantic and a regular depositor at the Windham National Bank, must have known that the check, if dishonored, would have come back in due course of mail to the bank and to him.

If it could be held that he was entitled to have actual knowledge of the payment of the check other than that involved in the facts found by the court, he must nevertheless have exercised diligence in obtaining that knowledge. The facts found by the court show an utter want of diligence, and the conclusion of the court that he exercised due diligence is wholly inconsistent with the facts found.

It is patent that the trial judge, in drawing his ultimate conclusion from the facts found, did not apply to those facts elementary and uncontested principles of law; or that, if he did apply those principles, his conclusion violates the plainest rules of logic. It is difficult to ascertain with certainty from the inadequate and somewhat contradictory finding which error the court committed; but it is not material. Either is ground for a new trial. Nolan v. New York, N. H. H.R. Co., 70 Conn. 159, 192.

There is error in the judgment of the City Court and the cause is remanded for further proceedings according to law.

In this opinion the other judges concurred.