Onе Walter J. Gwynne falsely represented to the appellants that he was Baldwin J. Gwynne, а man of financial responsibility, residing at Cleveland, Ohio. Belying upon the truth of this statement thе appellants delivered to him upon credit a quantity of jewelry. Gwynne in turn sold it to the respondent, who bought it without notice express or implied of any defect in title, and for value. Learning of the deception practiced upon them, the appellants began an action in replevin to recover the goods.
The only questiоn before us is whether under such circumstances, the vendor of personal property does or does not retain title thereto after he has parted with possеssion thereof.
The learned Appellate Division rested their decision upon thе definition of common-law larceny, holding that where such larceny had been cоmmitted the thief acquired no title by his crime; where it had not, at least a voidable title passed.
We agree with that statement of the law. But we should prefer to define the rule in another form. Where the vendor of personal property intends to sell his goоds to the person with whom he deals, then title passes, even though he be deceivеd as to that person’s identity or responsibility. Otherwise it does not. It is purely a question of the vendor’s intention.
The fact that the vendor deals with the person personally rathеr than by letter is immaterial, except in so far as it bears upon the question of intent.
*235 Whеre the transaction is a personal one the seller intends to transfer title to a person of credit, and he supposes the one standing before him to he that person. He is deceived. But in spite of that fact his primary intention is to sell his goods to thе person with whom he negotiates.
Where the transaction is by letter the vendor intends to deal with the person whose name is signed to the letter. He knows no one else. He supposes he is' dealing1 with no one else. And while _ in both cases other facts may bе shown that would alter the rule, yet in their absence, in the first title passes; in the second it does not.
Two cases that illustrate the distinction are
Edmunds
v.
Merchants’ Despatch Transportation Company
(
In Edmunds v. Merchants’ D. Transportation Company a swindler, representing himself to be one Edward Pape, personally bought gоods of the plaintiff on credit. The court held that the title passed. ‘c The minds of the рarties met and agreed upon all the terms of the sale, the thing sold, the price and the time of payment,- the person selling and the person buying. The fact that the seller was induced to sell by fraud of the buyer made the sale voidable, but not void. He could nоt have supposed that he was selling to any other person; his intention was to sell tо the person present, and identified by sight and hearing; it does not defeat the sale because the buyer assumed a false name, or practiced any other deсeit to induce the vendor to sell. ”
Oases of the same type are
Perkins & Gray
v.
Anderson
(
In Cundy v. Lindsay one Blenkarn, signing himself Blenkiron & Co., bought goods by letter of Lindsay & Co. The latter shipped the goods to Blenkiron & Co. They knew of the firm of Blenkiron & Son; believed the *236 letter came from that firm and that the goods were shipped to it. Blenkiron & Son were the persons with whom Lindsay & Oo. intended to deal and supposed they were dealing. Under those circumstances it was held that although Blenkarn obtained possession of the goods he never acquired title thereto.
A similar case is
Mercantile Nat. Bank, N. Y.,
v.
Silverman
(
Another class of cases such as
Hentz
v.
Miller
(
In indictments for larcеny, before the definition of that crime was changed by statute, this question of the passing of title was material; and, therefore, discussions as to whether an indictment or conviсtion could be sustained were relevant in cases where the question was whether оr not the title had in fact passed. But in cases of each class the intention of thе person having title to the goods and delivering them to another was the ultimate mattеr to be decided. And although it might be said in the one class of cases that where title did nоt pass there was no larceny; and in the other that where there was larceny the title did not pass, yet in both the test to be applied was this same intention on the part of the owner of the property.
The judgment of the Appellate Division must be affirmed, with costs.
Hiscock, Oh. J., Chase, Collin, Caedozo and Pound, JJ., concur; McLaughlin, J., not sitting.
Judgment affirmed.