Hicks v. Cleveland

39 Barb. 573 | N.Y. Sup. Ct. | 1863

By the Court,

Mullin, J.

The furniture in controversy in this suit was sold by Gardiner to Blossom for $1028.50, to be paid for on delivery of the property at Milwaukee by accepting two drafts for that amount, to be drawn by Gar-diner on him. After the agreement was made, and before the property arrived" at Milwaukee, Blossom left Wisconsin, and instructed one Watkins to inform Gardiner that he would not receive the property, and to return the same to Gardiner if it should arrive. The property did arrive at Milwaukee, and the drafts were returned without acceptance.

Under these circumstances, it is quite clear no title ever vested in Blossom. He did not perform his contract, to entitle him to possession, and he expressly refused to accept the goods before their arrival, and directed a return thereof. Blossom had no interest in the goods subject to levy and sale on execution against him. The sheriff and all others, inter-meddling with the property were wrongdoers.

The goods being directed to Blossom, and no one asserting title to the furniture, the sheriff came lawfully into possession of it. A demand was therefore necessary to entitle Gar-diner to maintain an action for the conversion. When he sold to the plaintiff he had, at his election, the right to follow the goods, or to sue for damages for the illegal conversion. He had the right to sell either or both of these claims, and the purchaser of the latter might sue without any new demand. But the purchaser of the property could not bring trover without a demand. This was the point determined by the general term, when this case was before it after the first trial of this cause.

The sale of the goods did not carry a right of action for a previous conversion.

The transfer to the plaintiff was, 1st. The account; and 2d. The furniture. Under neither did the plaintiff acquire the right of action for the conversion.

It was held in Waldron v. Willard, (17 N. Y. Rep. 466,) that an assignment by a consignor of all his interest in the goods, transferred to his vendee a right of action against the common carrier, for non-delivery under his contract, The only interest left to the consignor in that case was this right of action; and as it was the intent of the parties that the interest of the consignor, whatever it was, in the property, should pass, the right of action, being all the interest he had, must be held to pass, or the contract was a mere nullity. The principle does not help the plaintiff in this case. Gardiner had a right of action, which his contract does not convey, and the plaintiff has not perfected his right by a demand.

[New York General Term, May 4, 1863.

Sutherland, Clerke and Mullin, Justices.]

1 am therefore of the opinion that the judgment must be reversed, and a new trial granted; costs to abide the event.

Judgment accordingly.