46 Md. 334 | Md. | 1877
delivered the opinion of the Court.
The appellee, Lindau, sued the appellant, the Sheriff of Baltimore City, in trover, for seizing, carrying away and Converting to his own use a lot of wines and liquors, and a horse and wagon alleged to he the property of the plaintiff. It appears from the record, the sheriff seized these goods and chattels under executions on certain judgments, against William B. Lipper, recovered in March, 1871. The levy was made on or about the 5th of October, 1874, and the property was sold hy the sheriff after due advertisement on the 22nd of that month. The plaintiff claimed the horse and wagon under a bill of sale thereof to him from Lipper dated the 26th of May, 1870, and duly recorded
1st. As to that part of the -case which relates to the horse and wagon, we find no substantial error in the rulings which the Superior Court gave on that subject. The evidence shows that after the hill of sale was executed, Lindau allowed Lipper, at the latter’s request, to change horses and have another instead of the one mentioned in the bill of sale, because the latter shied and would not go near a locomotive, and that Lindau received, and for a time, used this horse, but this exchange was afterwards revoked, and Lipper again received from Lindau the horse mentioned in the bill of sale, and had him in possession at the time he was seized by the sheriff. In granting the plaintiff’s first prayer the Court instructed the jury, that if they found that the horse mentioned in the bill of sale was re-transferred to Lindau, then the lien thereon credited by the bill of sale was lost, but if they found this substitution of horses was only an exchange of use, then such exchange does not impair the plaintiff’s right to recover. If the jury under this instruction found, as by their verdict, it appears they did, that this transaction was a mere temporary exchange of the use of these two horses, it is clear the appellant has no cause of complaint, for there is no principle of law which declares that if a mortgagee of a chattel, temporarily uses it with the assent of the mortgagor and then returns it to him, the mortgage
2nd. The contract under which the plaintiff claims the other goods sold by the sheriff, is in writing, signed by both parties thereto, and is as follows :
“ This agreement made this 27th day of August, 1873, by and between Joseph Lindau and William B. Lipper, both of the City of Baltimore and State of Maryland: Whereas, the said William B. Lipper is desirous of carrying on and conducting the retail liquor business at 51 East Lombard street in said city, hut is unable to do so because of his inability to furnish stock and capital necessary in said business: and whereas, said Lipper is without means of his own, and the said Lindau has consented*345 to aid liim upon the terms and conditions hereinafter named. Now this agreement witnesseth that the said Joseph Lindau agrees to furnish and deliver to said Lipper, as his agent, all such liquors, wines, &c., which he may require in the said business at the usual wholesale prices so long as it shall be agreeable for him to do so, and said Lipper shall faithfully comply with this agreement. It is expressly understood and agreed however, that said Lipper shall conduct and carry on said business only as the agent of said Lindau, and the stock in trade furnished as aforesaid shall be and remain the absolute property of the said Lindau, and that all goods shall be sold for and on- account of said Lindau, and all bills for goods sold shall be made out in the name of said Lipper, as agent aforesaid and in no other manner ; and said Lipper shall account to said Lindau at least once a month, for all goods delivered to him under this agreement, and shall pay over the wholesale price of such goods, and retain for his labor and attention in said business such profits as shall be made.”
There are some features in this instrument of an unusual character, and tending to arouse suspicion as to its tona fides, but we cannot pronounce it void on its face. It is in substance an agreement by which Lindau, who appears to have been a wholesale liquor dealer, was to furnish a stock of goods to Lipper, in order to enable the latter to carry on a retail liquor business, as agent for the former, with power to sell the goods for and on account of his principal. The agent was required to render monthly accounts of the goods delivered to him under the agreement, and sold by him, and to pay over to his principal the wholesale price thereof, and instead of being paid for his services in the usual way, by a salary or commissions on sales, the agent was authorized to retain for his labor and attention in the business, what profits he could make by selling at retail. Parties have the right to contract as they please, if their
But in our opinion, there is another view to be taken of this branch of the case. If these goods were in .fact sold to Lipper on credit, instead of being entrusted to him for sale as agent, or if the agreement referred to was merely colorable, not made in good faith, and was intended to be used for the purpose of protecting property which was actually sold to and belonged to Lipper from his creditors, under the guise of an agency, then we think it is quite clear the goods could be seized on execution, both by his antecedent and subsequent creditors. Thus, if the facts were, as stated in the defendant’s third prayer, that Lindau delivered the goods in the store to Lipper, at a fixed price, being the wholesale market price for such goods at the time of dealing, and charged the >same to Lipper on his books, and authorized Lipper to sell and dispose of them as if they were his own, and that Lipper was to receive all the profits of such sales, and was to sustain all losses arising therefrom, or which might be incurred by injury to or destruction of the goods, and was not to receive any commissions or salary, and was never required to account for such sales, nor to render any account of the same from time to time, except that he was simply to pay for the goods, the price charged on the books of Lindau, (the same being the wholesale price of the same,) and in the bills for the goods sent to Lipper by Lindau, at the time of delivering the same, and that said bills so rendered, were in the ordinary form of sale bills, made out to a purchaser of goods, then in our judgment, there was in effect a waiver or abandonment of the agency contract, and the protection it would otherwise have afforded to Lindau’s asserted ownership of the goods, and constituted- in law a sale of them on credit, accompanied by delivery. Where all the elements of such a sale exist, it cannot be made anything else by calling it by a different name. We
The exception to the ruling on the admissibility of evidence contained in the first exception, is not noticed in the
Judgment reversed, and neto trial awarded.