Drexel v. Pease

11 N.Y.S. 133 | N.Y. Sup. Ct. | 1890

Barrett, J.

Upon the main question presented by this appeal we concur in the conclusion arrived at by Mr. Justice Lawrence. The contract for a general lien entered into between the plaintiffs'and Pease was of binding force. The plaintiffs issued their letter of credit upon the faith of this contract, and their title to the goods was impressed therewith. When Pease applied to them for' the letters of credit in favor of St. Amant, they had no reason to doubt that Pease was the principal, and that St. Amant was simply his correspondent and agent, and that the goods were to be purchased for Pease by St. Amant, the latter utilizing the letters of credit for such purpose. Even the contract between Pease and St. Amant. as embodied in the letter of March 21, 1883, plainly gave Pease the title to the goods which were to be shipped thereunder, and absolute power of disposition. If Pease had chosen to sell the goods as they arrived, and to appropriate the proceeds to his own use, the only remedy of St. Amant or of the original owner of the goods would have been against Pease. They could not have followed the goods into the hands of a bona fide purchaser. Indeed, they simply contracted with Pease for an accounting at the close of the season, and a division of the net profits of the season, then in his hands. Clearly it was left in Pease’s power to deal with these goods as his own, and he could make a valid contract with the bankers for a general lien applicable to-all his transactions. St. Amant was right in saying, as he did in his letter of March 21, 1883, that Pease w'ould see from a study of this letter that the original owner was thereby left entirely in his (Pease’s) hands as to the result. We think the reasoning of Mr. Justice Lawrence, and the authorities cited by him, support his conclusions, and we deem it unnecessary to add anything further to his opinion on that head.

Our doubt has been with regard to the disposition of the case as between the co-defendants. After directing the payment by the receiver (out of the proceeds of the goods which had been intrusted to Pease) of the amount due to the plaintiffs, the learned judge directed the continuance of the action, for the purpose of ascertaining certain facts necessary to its final determination as between the co-defendants. He then directed a reference to ascertain such facts, and reserved all other questions until the coming in of the report. Whether this practice was correct need not now be considered, for the reason that none of the parties question it. The plaintiffs have nothing to do with this direction, and they simply ask an affirmance of the judgment in their favor. The defendant St. Amant appeals only from the judgment in the plaintiffs’ favor, and insists that the direction as to a reference is correct, and should be affirmed. The banks and the assignee alone appeal from this part of the judgment. They do not, however, question the practice. They insist that they were entitled to a dismissal of St. Amant’s claim upon the merits, that is, upon the pleadings and proofs as they stood; and their appeal raises that question, and that alone. We think that this latter question cannot properly be considered until a decision one way or the other has actually been made at special term. The reference was ordered for the purpose of aiding the court in making a final and complete disposition of the questions in dispute . as between these co-defendants. Upon an appeal from the final judgment the question of pleading, presented upon the present appeal, may be entirely eliminated from the case, for the court can, at any time before the final hearing, permit St. Amant’s answer to be amended. At all events, the reversal of the direction as to a reference would not aid the banks and the assignee, for we could not thereupon direct a dismissal of St. Amant’s answer. The only effect of a reversal would be to require a decision by the special term (without a reference) of the questions now presented, or else to direct a new trial. We could not make the appropriate decision in the first instance. The question of the mere regularity of the practice not having been raised, we deem it unnecessary to pursue this subject further. The provision in the judgment for the continuance of the action and for a reference is neither interlocutory nor final. It decides nothing. We might reverse this direction if on examination it were found to be unauthorized; but, if we did reverse it, we could not at the same time say what should have been decided. When the report comes in, a decieion must be made, either interlocutory or final, upon these issues, and then there will be something to review. The proper disposition of this, appeal is to affirm the judgment actually rendered in the plaintiffs’ favor, except as to the extra allowance, which should, be reduced to 5 per cent, upon the recovery, and to dismiss the appeal "taken by the banks and the assignee,, without costs. All concur.