108 N.Y. 439 | NY | 1888
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As factors, Vanuxem, Wharton Co. had no title to the consigned goods. The consignor, upon a consignment of goods to be sold on commission, does not part with his title by the consignment, but he continues to be the true owner of the consigned property until sold by the consignee, and the rule is the same whether the consignee is a del credere factor, or is under advances for the principal, or is simply an agent for sale, assuming no responsibility except that usually appertaining to the position of an agent. (Baker v. N.Y. Nat. Ex. Bank,
The precise question in the present case is whether a factor, having advanced generally on the goods in his hands, can, in the absence of special authority, sell, out and out, a debt existing in open account, arising on a sale of a portion of the consigned goods, so as to transfer a good title to the claim, and this too before the maturity of the debt, and when the principal is not in default and has not been called upon to repay the advances and there are no special circumstances. The question depends, we think, upon the general doctrine of agency. The agent is invested with such authority as his commission confers, and as to third persons, such as he is held out as possessing, and in construing his authority the custom or usage of the business is frequently a material consideration. The transaction between Vanuxem, Wharton Co. and the bank was not a sale of goods or a collection of a debt. By the general rule a factor cannot bind the principal by a disposition of his property out of the ordinary course of business. (Easton v. Clark,
This conclusion leads to a reversal of the judgment.
All concur.
Judgment reversed.