| N.Y. App. Div. | Jul 1, 1896
The referee found that “ work on putting the elevator in place was commenced about June 19th, and finished about June 27th, 1893.”
I think the date given, as the time when the elevator was finished, must be a clerical error. I can find no evidence to sustain a finding that it was finished June twenty-seventh, but some that it was finished July twenty-seventh. The testimony of the witnesses, as to the time when it was finished, ranged from July fifteenth to July twenty-seventh, and the finding in that respect should be corrected accordingly.
The referee also found that the elevator did not become a part of the realty, which finding was not excepted to, and in considering the case the elevator must be treated as personal property.
The judgment herein was rendered in favor of the defendant and against the plaintiff apparently upon the theory that the contract between the plaintiff and Allen, whereby the property in question was to remain the property of the plaintiff until paid for, was void, under the statute, because not filed in the town clerk’s office in time, and also upon the theory that if the elevator was not in fact in existence at the time of the execution and delivery of the chattel mortgages it was potentially in the possession of Allen, and, therefore, a mortgage upon the same was a good and valid mortgage, and gave title to the purchaser under it. The cases of Otis v. Bill (8
Whether the cases referred to do in fact sustain the theory of the defendant, and the learned referee below, upon the peculiar facts of this case, I shall not undertake to discuss.
That question is unimportant, unless the agreement that the elevator should remain the property of the plaintiff until paid for, is void because not filed in the town clerk’s office.
At common law a conditional contract or bill of sale like the one in question here would convey no title in the property to the vendee until complied with, and any one purchasing such property or taking a mortgage thereon, would obtain no title thereto or lien thereupon, although such purchase should be made in good" faith and for value. (Ballard v. Burgett, 40 N.Y. 314" court="NY" date_filed="1869-03-23" href="https://app.midpage.ai/document/ballard-v--burgett-3607227?utm_source=webapp" opinion_id="3607227">40 N. Y. 314; Austin v. Dye, 46 id. 500; Cole v. Mann, 62 id. 1; P. T. & S. Co. v. Schirmer, 136 id. 305.)
Allen then could convey no title to or place any lien upon the elevator unless the conditions of his contract with the plaintiff were rendered void by reason of the failure to file the same.
The statute in regard to filing conditional contracts of sale is as follows: “ In every contract for the conditional sale of goods and chattels hereafter made which shall be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the. things contracted to be sold, all conditions and reservations which provide that the ownership of such goods and chattels is to remain in the person so contracting to sell the same or other person than the one so contracting to buy them until said goods or chattels are paid for, or until the occurring of any future event or contingency, shall be absolutely void as against subsequent purchasers and mortgagees in good faith, and as to them the sale shall be deemed absolute, unless such contract for sale with such conditions and reservations therein, or a true copy thereof, shall be filed as directed in the succeeding section of this act.” (§ 1, chap. 315, Laws of 1884; 3 R. S. [9th ed.] 2609.)
This statute, being one that changes the common law as it existed when it was passed, is to be held to abrogate it only so far as the clear import of the language absolutely requires. (Tompkins v. Hunter, 149 N.Y. 117" court="NY" date_filed="1896-04-07" href="https://app.midpage.ai/document/tompkins-v--hunter-3579591?utm_source=webapp" opinion_id="3579591">149 N. Y. 117-123.)
This plainly cannot refer to a contract that is to be executed in the future, where the property is to be delivered in the future; it says, which shall be accompanied by an immediate delivery, that is, a delivery of the property sold at the time of the execution of the contract. And “ be followed by an actual and continued change of possession of the things contracted to be sold; ” that means an actual and continued possession from the time of the delivery of the goods when the contract is executed.
Very plainly this does not refer to a case where the thing sold is to be delivered long after the execution of the contract, nor to a case where the articles are to be manufactured, and where the contract contemplates after delivery and a future vesting of actual possession. Neither will the subsequent delivery of the property to the vendee relate back to the time of the execution of the contract and render such contract void from the beginning.
At the time of the execution of this contract it appears that the elevator was not in existence; it was to be thereafter made. It has been held that a parol contract for the sale of articles to be thereafter manufactured and delivered is not void under the Statute of Frauds. (Parsons v. Loucks, 48 N.Y. 17" court="NY" date_filed="1871-09-05" href="https://app.midpage.ai/document/parsons-v--loucks-3611581?utm_source=webapp" opinion_id="3611581">48 N. Y. 17; W. C. & M. Co. v. Holbrook, 118 id. 586.)
By a parity of reason, it seems to me that the contract here does not come within the meaning of the statute providing for filing conditional contracts of sale, and, hence, that Allen had no property in or title to the elevator at the time he executed the chattel mortgages above referred to, and that the fact that the several parts of the elevator were upon his premises, waiting to be erected and put together to constitute the elevator, did not place the title to it potentially in him.
To be potentially in existence, the property or right out of which it is to arise, grow, or be created, must be legally in the possession of the person, as sown seed, when there is a sale or mortgage of
Here there was no legal possession by Allen of the various parts of the elevator; there was no sale to him of the materials of which the elevator was to be composed; it was a complete elevator, erected and in place which was contracted for. If the materials on the ground, when the mortgage was given, had been destroyed by fire, the loss would have been the loss of the plaintiff, not of Allen.
While the parts and material of which the elevator was to be constituted were on Allen’s premises, they were not in his possession; the workmen of the plaintiff were there to put them together and erect it; they were still not only in the legal but in the actual possession of the plaintiff; hence, Allen had no right to sell or mortgage them.
The reason for the enactment of the law providing for the filing of contracts for conditional sales was to protect those purchasing in good faith articles from those apparently having the title to the same, as evidenced by their possession.
There is nothing in this case that gives evidence that the defendant or any of the mortgagees was in anywise misled. They were all engaged in furnishing labor and material for the erection of the hotel; they knew that Allen was unable to pay for the work and materials done and furnished ; that was the reason for their taking the mortgages; they saw the parts of the elevator upon the ground ; they knew that they had yet to be put together and the elevator erected; they had every reason to believe that the concern engaged in furnishing the elevator was in the same condition in which they were, that is, unpaid and unsecured, and that by taking its property to secure their claims they were depriving it of what was, in equity, at least, its property.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed and a new trial granted, costs to abide the event.