Gribson v. Stone

28 How. Pr. 468 | N.Y. Sup. Ct. | 1865

By the Court,

Clerke, J.

I concur with the referee in the' opinion that the three letters, of December 29, 1860, January 11, and January 29, 1861, did not create any specific lien upon the goods mentioned in these letters. The first letter states that the Hew York house should hold the proceeds of the sales of certain goods for the plaintiffs’ account, as security for the payment of their acceptances of Messrs. J ames Black & Co.’s two drafts for £5000 each, drawn as an advance against the above mentioned shipment^ The second letter of January 11, 1861, written by the plaintiffs to Messrs. Stone & Co. of Hew York, stating that they hand the latter the two acceptances for £5000 each, as advances on the goods,, and which, according to an arrangement with the house of Stone & Co. in Manchester, were to be held in trust for the payment of the said two acceptances. The third letter, dated 29th January, 1861, written by Stone & Co. of New York to the plaintiffs, acknowledges the receipt of the letter of the 11th, which they say advises them of the acceptances, and indicates the goods to be held in trust for the payment of the acceptances.

Taking these letters together, they simply amount to a promise on the part of Stone & Co. to hold the proceeds of the goods for the benefit of the plaintiffs. It gives them no specific lien on the goods themselves; and if Stone & Co., instead of selling the goods for cash, and remitting the proceeds to the plaintiffs, appropriated them to the payment of their debts, the plaintiffs have no more right to follow them into the possession of the creditors than they would have to follow the proceeds, in case Stone & Co. sold the goods for cash, and appropriated the money to the payment of the same debts. In either case it is alike merely a violation of a promise, for which they are personally responsible to the plaintiffs.

No intent is shown on the part of Stone & Co. to surrender all control over the goods; and this, according to all the authorities, is necessary, in order to constitute an equitable assignment. All that Stone & Co. have said in the letters of 29th December, 18.60, and of 29th January, 1861, amounts, I repeat, only to a promise to hold the goods in trust for the benefit of the plaintiffs, and to pay the proceeds to them, giving to the plaintiff's no equitable assignment, and still more clearly, no pledge or mortgage. Stone & Co. retained, throughout, complete control over the goods.

I also am decidedly of opinion that the referee correctly found that Henry A. Stone was not a partner with Stone & Co. As a creditor, for the loan of $100,000, he received 7 .per cent; as a previous member of the firm, having disposed of his share of the good will of the establishment, the new ¡firm agreed to allow him, half yearly, one per cent upon the gross sales of the firm, precisely as they might have allowed any agent for procuring customers a similar per centage. In this agreement, they expressly declare that Henry A. Stone has no interest in the commission guaranties, or profit and loss, and that he is in nowise a partner, or to be allowed to have any part or control in the business of the house.

[New York General, Term, Febuary 6, 1865.

The judgment should be affirmed, with costs.

Ingraham, Clerke and Sutherland, Justices.]