39 How. Pr. 429 | The Superior Court of New York City | 1870
On or about the 24th day of December, 1868, Mr. John II. Ford, the plaintiff in this action, was owing the defendant, Mr. Charles B. Ransom, the sum of eight thousand one hundred and nineteen dollars, and twenty-four cents, to secure which he sells to Mr. Ransom the stock of goods and fixtures in certain premises, and executes and delivers a bill of sale for Said goods and fixtures—Mr. Ford retaining possession and trafficking with said goods. Along with such bill of sale he executed an assignment of an unexpired lease which said Ford held of said premises. At the same time the defendant delivers back to the plaintiff a written stipulation, securing to him (Ford) the possession of the goods and fixtures until the following first of
Clearly, the plaintiff is entitled to the relief he solicits. The bill of sale and the stipulation being executed at the same time, between the same parties, in relation to the same subject-matter, and in contemplation of the same object, constitute but a single contract; and thus it appears that by his own agreement the defendant has renounced the right of possession under his bill of sale, and has secured possession of .the chattels to the plaintiff until the expiration of the stipulated period. I am at a loss to conceive by what right the defendant can claim possession in defiance to his own solemn stipulation : conceding that by the bill of sale the properly in the goods passed to the defendant, yet he was not to have possess ion until the first of January. The transaction is in effect a chattel mortgage. Indeed, in terms it fulfills all the conditions of a mortgage, there being a transfer by way of security and a contingency on which the transfer should become void : viz: payment of the debt. Meanwhile the vendee (mortgagee) assents that the vendor (mortgagor) shall remain in possession until déiault. Upon what principle, until that default, can the vendee claim of the ? It is familiar