147 N.Y.S. 1045 | N.Y. App. Div. | 1914
The action was in replevin to recover possession of certain merchandise alleged to have been stored with the defendant, a corporation engaged in the storage business in the city of New York. The plaintiff was a foreign corporation, incorporated under the laws of the State of Maryland and located in the city of Baltimore in that State. The defendant was a corporation, organized under the laws of this State and engaged in the storing and housing of merchandise in the city of New York.
The complaint alleges that the plaintiff was the owner of certain merchandise which had been consigned by the plaintiff to one William H. Bayne, as agent of the plaintiff and by him placed in the storage warehouse of the defendant. The answer, after denying the allegations of the complaint in relation to these chattels, alleges that the plaintiff had brought an action against the said Bayne for conversion, detention and wrongful withholding of the said chattels mentioned in the complaint of the plaintiff herein, in which a judgment was entered against said Bayne and in favor of plaintiff and that the said judgment was a bar to this action. To this answer the plaintiff interposed a reply and at the same time demurred to the defense that the judgment in the action of the plaintiff against the said Bayne was a bar to the prosecution of this action, upon the ground that the same was insufficient in law upon the face thereof.
The action was referred to a referee to hear and determine and the referee found that at the time of the commencement of
The action being in replevin, the plaintiff was bound to prove that it was entitled to the possession at the time of the commencement of the action. The answer denied these allegations of the complaint, and upon the trial defendant offered evidence, which was received over objection by the plaintiff as not within the issues, that Bayne had deposited these goods in the
The question then presented is whether upon the whole evidence Bayne had express or implied authority from the plaintiff to pledge the plaintiff’s goods in his possession as security • for a loan which on its face was made to Bayne as the pledgor. If he had such authority, the fact that he misappropriated the money borrowed would, of. course, not affect the right of the pledgee to hold the goods as security for the money loaned. The referee finds that the authority of "the said Bayne was limited solely to the procurement of such orders for the plaintiff; that the said Bayne was not authorized to make sales of the woolens manufactured by the plaintiff or to have any supervision, control or authority thereover or authority in relation to the conduct of the business of the plaintiff. If this finding is sustained by the evidence, of course it follows that Bayne’s deposit of the goods with defendant and his pledging the warehouse receipts therefor was unauthorized and the pledgee had no lien upon the goods as security for his loans to Bayne.
Plaintiff, a foreign corporation, having its principal place of
The witness testified that when a sale of goods was made by an agent or broker, the plaintiff received the money from the purchaser; that he asked Bayne to sell plaintiff’s goods and remit the money, but he never authorized Bayne to sell the goods referred to in his preceding testimony and remit the money to plaintiff. Further the witness 'testified: “We authorized Mr. Bayne to store some of our goods in the Mercantile Warehouse Company;” that in the year 1903 Bayne had authority from the plaintiff to negotiate loans upon any goods in his control which had been manufactured by the plaintiff. There was then introduced in evidence a series of letters from the plaintiff to Bayne in relation to his business relations with the plaintiff. On February 16, 1903, the plaintiff wrote to Bayne: “We have determined to allow you to dispose of this stock at the best market prices, reserving to ourselves the right to recall this arrangement at any time we see fit for the protection of ourselves. We have made you well aware of the conditions we are laboring under now and have been for the
The defendant claims that Bayne’s agency terminated on August 30, 1903, and that immediately thereafter repeated demands were made upon him for the return to the plaintiff of all of its property then in his possession. Part of the property held by Bayne was turned over to plaintiff’s substituted agent. But, if Bayne had actual authority to make these loans and no notice was given to the defendant or Gribson of the termination of his authority, I do not see how the defendant or Gribson can be held responsible.
The only evidence as to restricting the authority of Bayne that I can find in this record is the testimony of plaintiff’s treasurer and general manager, that some time in August, 1903, the accounts of Bayne had been transferred to other agents in Hew York, and that on September 7, 1903, Bayne was still acting as agent for the plaintiff. On September 7, 1903, plaintiff wrote to Bayne and referred to outstanding loan with Gribson, the president of defendant and who had made the other loans, on which there was said to be due $250, and
I think this case comes directly within what is commonly known as the “Factors’ Act” (Laws of 1830, chap. 179), section 3 of which provides: “Every factor or other agent,
But I am also of the opinion that the special defense set up in the answer was sufficient upon the face thereof to defeat the plaintiff’s claim. The defendant set up as a bar to the plaintiff’s action the fact that after the transaction in question the plaintiff commenced an action in conversion against Bayne to recover the value of these goods, alleging as a basis of the conversion the pledging of the goods by the said Bayne to Gibson as security for loans and judgment was entered herein against Bayne. In regard to this special defense the plaintiff adopted a novel procedure. It first demurred to the special defense as insufficient in law upon the face thereof and having thus demurred, it interposed a reply, which, referring to this special defense, “ denies so much of the allegations of paragraph VII, of the amended answer of defendant herein as alleges that there is now pending between this plaintiff and William H. Bayne, an action by this‘plaintiff, on the same alleged cause of action, and involving the same issues as are involved herein.”
The record in this case is very involved and it is with considerable difficulty that the facts can be ascertained. It is clear that the judgment must be reversed, but, in view of the
The judgment appealed from is, therefore, reversed, with costs to the appellant to abide the event, and a new trial is ordered before a new referee .to he named in the order to be settled on notice.
McLaughlin, Laughlin and Scott, JJ., concurred; Hotchkiss, J., concurred on second ground.
Judgment reversed and new trial ordered before another referee, with costs to appellant to abide event. Order to he settled on notice.