129 N.Y.S. 702 | N.Y. App. Div. | 1911
Lead Opinion
The plaintifE in his complaint alleges that on February 8, 1908, he sold to one Shaw a team of mares and harness for $650. Shaw paid $125 thereon and gave his note, dated February 8, 1908, for $525 balance, payable two months after date. The note recited that it was given for the purchase price thereof, and contained this provision: “ And it is expressly agreed that no title to said property, for which this note is given, shall pass from F. J. Nelson until this note is fully paid.” That he then and there delivered the said mares and harness to said Shaw. On April 4, 1908, the complaint alleges, Shaw sold and delivered the said mares and harness to the defendant Gibson, subject to the said note and claim of plaintifE, which said note and claim the defendant then and there assumed, and agreed with said Shaw to pay to the plaintifE as a part of the consideration for the sale and delivery of the property as aforesaid, as plaintifE is informed and believes, and on the same day defendant again assumed the payment of said note and claim,
Prior to the enactment of the Lien Law or Personal Property Law hereinafter to be referred to it was the law that when a chattel is delivered to one who has bargained for the purchase thereof and agreed to pay therefor at future day under an express contract that no title is to vest in him until payment, the property of the vendor is not divested and the purchaser takes at most only a right by implication to the use of the chattel until default in the stipulated payment.
In this case Shaw had a contract for conditional sale only and manifestly he could give no better title to the defendant than he possessed himself. The action here is not brought upon any sale by the plaintiff to the defendant for none is pleaded, but upon the sale of Shaw to the defendant and defendant’s agreements made with Shaw and made with the plaintiff concerning payment of the notes. (See, also, Austin v. Dye, 46 N. Y. 500.)
The transfer from Shaw to the defendant did not materially change the nature of the transaction. The plaintiff was still the owner of the mares and the harness. He had no lien thereon for the reason that a person could not, prior to the Lien Law at least, have a lien upon his own property. In Earles. Robinson (91 Hun, 363, 370; affd., 157 N. Y. 683, upon the opinion of the court below), which is a case very similar to this, the purchaser had taken possession of the property under an agreement that it was to remain the seller’s until paid for and given notes in partial payment therefor Later on the notes given for the payment of the property not being met, the original sellers took possession of the property under the original contract to sell the same, sold the property and then desired to hold the original purchaser for the amount of the notes in addition to having taken away the property. The court held that where there has been a sale of goods with a precedent condition that the title shall not pass until the full payment of the purchase price, the vendor cannot have a lien for the purchase money — a vendor cannot have a lien on his own goods. It was held further that the sale of the chattel in the first instance was conditional, and that as
White v. Gray's Sons (96 App. Div. 154,156) is authority for the proposition that a vendor under a conditional sale cannot have both the property and the purchase price. Where he has elected to retake the property absolutely, the consideration for obligations or security given for the purchase price fails, and he can neither collect upon the one nor enforce payment of the other. (See, also, Cooper v. Payne, 111 App. Div. 785, where it is held that upon a conditional sale where the vendor has reserved the right to retake the possession on the failure of the vendee to pay notes given for a balance due and does so retake possession, he cannot thereafter recover the purchase price, and the consideration for the notes fails.) “ Plaintiff cannot disaffirm the contract of sale, take and keep his property and at the same time require the defendant to pay therefor.' Neither could he sell the property and apply the proceeds of such sale on the promissory notes of the defendant.”
Here the taking of the mares and harness by the deputy sheriff was a taking by plaintiff. The sheriff had no process for taking them except the direction of the plaintiff so to do. When plaintiff took them as we have seen by ample authority he took his own property and the consideration for the note failed. What he did with the mares and harness after taking them is immaterial. The route may have been circuitous but the destination was the same. He took his property where he found it and disaffirmed his contract of conditional sale, and could not thereafter recover on the note.
It is provided in the Personal Property Law
I think the complaint does not state a cause of action and should have been dismissed and motion granted.
It follows that the order should be reversed and judgment granted as asked for in the motion, with costs to the defendant.
All concurred; Houghton, J., in memorandum, in which Kellogg, J., concurred.
See Consol. Laws, chap. 41 (Laws of 1909, chap. 45), §§ 65-67.— [Rep.
Concurrence Opinion
I concur in a reversal of the order on the ground that the complaint fairly construed alleges not a sale of property upon which there was a lien which the defendant agreed to pay as part of the purchase price, but rather an attempted sale of property according to the provisions of sections 116 and 117 of the Lien Law (Gen. Laws, chap. 49 [Laws of 1897, chap. 418], as amd. by Laws of 1900, chap. 762), with demand for payment of the deficiency. The sale not having been conducted in accordance with the provisions of these sections, the plaintiff cannot recover the balance. He not having complied with the law, his legal status is the same as though he had chosen to retake the property absolutely, and having so done, as shown by Mr. Justice Betts in his opinion, he has no further right of action.
Kellogg, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion for judgment granted, with costs, with leave to plaintiff to amend his complaint upon payment of the costs in this court and in the court below.