78 N.J. Eq. 557 | N.J. | 1911
We agree with the result reached by the vice-chancellor, and with the essential portion of his reasons. His opinion, however, contains some inadvertent expressions which call for remark. He says, in discussing the question whether the horses sold by Brown to Tully were upon a conditional sale: “Some of the horses died after they were delivered to Tully, but this fact was ignored by Brown in his account. He did not, by reason thereof, lessen his claim against Tully as he undoubtedly would have and must have done if the sales were conditional and the horses were his and not Tully’s.”
This passage indicates that in the case of a conditional sale, where the goods are delivered to tire buyer and the title is retained by the seller as security for unpaid purchase-money, the risk of loss is the seller’s. The weight of authority is to the contrary. Willis. S. § 304; American Soda Fountain Co. v. Vaughan, 69 N. J. Law (40 Vr.) 582, cited with approval by this court in American Soda Fountain Co. v. Stoltzenbach, 75 N. J. Law (46 Vr.) 721 (at p. 724). The rule has been embodied in section 22 (a) of the Sales act of 1907. P. L. 1907 p. 321.
The vice-chancellor also says: “The mere fact that she held the judgment would not be a consideration for the mortgage, unless she agreed that upon receiving the mortgage she would be bound in some way with respect to the judgment. Otherwise it would be a nudum pactum. It is argued that the mortgage was given as collateral security for the payment of the judgment, but even so, there must be a consideration for the mortgage, and unless the mortgagee was disadvantaged or the mortgagor was advantaged by reason of the giving of the chattel mortgage there was no consideration. There is no proof of disadvantage to the mortgagee, or of advantage to the mortgagor as a consideration of the mortgage, and no proof of any agreement of any kind by the mortgagee respecting the judgment.” This passage from the opinion assumes that in order to make a chattel mortgage good, there must be a then present consideration when it is given. It has, however, been held by this court that a precedent debt is a
It is suggested by the appellant that if the second chattel mortgage is void as to Brown because it fails to state the consideration of the indebtedness which Abraham Collerd assigned to the appellant, it is valid to the extent that it secures the judgment recovered by Winant against Tully and assigned to the appellant. There are two difficulties with this argument. Section 4 of the
The decree appealed from is affirmed, with costs.