11 N.Y.S. 448 | N.Y. Sup. Ct. | 1890
This is an appeal from a judgment upon the decision of a judge, upon a trial before him at a special term without a jury. The action was for the alleged conversion by the appellants and the Hew York Pulp Company of four sets or pairs of water-wheels furnished by the plaintiff to the New York Pulp Company under the following agreement:
“Hadley, N. Y., April 11, 1887.
“Bodney Hunt Machine Company: You will please manufacture and ship to the undersigned at Hadley, N. Y., four (4) sets or pairs of twenty-four (24) inch water-wheels, per plan submitted and described in letters; in consideration of which the undersigned agree to pay, with exchange, besides the freight from the manufactory, the sum of $2,600, and it is agreed that the above-specifled articles are to remain the property and subject to the order of the Bodney Hunt Machine Company until paid for in full, and that if notes are given for said sum, no payment thereof or thereon shall divest the right of the Rodney Hunt Machine Company until all said promissory notes are paid in full. Neither shall any payment on account or receipt therefor divest said title until-said sum is fully paid. It is further agreed that this instrument evidences the whole contract by which said articles are received by the undersigned.
“ Hadley, Saratoga County, N. Y.
“New York Pulp Company,
“James M. Stewart, Manager.”
The wheels referred to in the above memorandum were placed in the mills of the New York Pulp Company, for which two notes of the company were.given, on which there remained due and unpaid on the 1st of June, 1889, the time of the commencement of this action, the sum of $2,155.83. The memorandum or contract above set out was on the 9th day of April, 1887, filed in the Hadley town clerk’s office, but was never reliled. On the 1st day of June, 1888, the
The question which seems first to be presented for consideration is whether the Yew York Pulp Company could, as against this plaintiff, legally mortgage this property. And the answer to this question must depend upon the construction of the contract between .the plaintiff and pulp company,—whether it was a conditional sale, the title to remain in the plaintiff until payment by the pulp company, which was a condition precedent to the vesting of the same, with a qualified fight of possession in the pulp company, dependent upon their performance of- that condition, or whether it was an absplute sale, under which the title passed at the time, and the condition as to payment was a mere security for the price, as in Wait v. Green, 36 N. Y. 556. I am of the opinion that this was an executory contract for a sale, de
Was the mortgaging of the wheels such a transfer? The answer to this question must to some extent depend upon the effect which the mortgage may have upon the plaintiff’s right reserved under the contract with tile pulp company. We have seen that under that contract the title-remained in the vendor, subject to the power and right of the vendee-to divest the same by the ■performance of the subsequent condition of payment, provided in the agreement, which was a condition precedent to the vesting of the title in the vendee. Is that rule changed, as between the vendor and bona, fide purchasers or mortgagees of the vendee, by the- provisions of chapter 315 of Laws of 1884 as amended by chapter 225 of the Laws of 1888? Section 1 of chapter 315 of Laws of.1884 is as follows: “In every contract for conditional sale of goods and chattels heieafter made which shall be accompanied by an immediate delivery, and followed by an actual and continual "change of possession of the thing contracted to be sold, all conditions and reservations which provide that the ownership of such goods and chattels, is to remain in the nerson so contracting to sell the same, or other person than the one contracting to buy them, until such goods or chattels are" paid for, or until the occurring of any-
The learned trial judge was right in holding that “the position of the pulp company in regard to these wheels is not unlike that of a mortgagor of a personal chattel after default, where the title of the mortgagee is held to be abso- ‘ lute.” In such a case, Thomas, in his treatise on Mortgages, says: “If the mortgagor, or any person in his behalf or under his title, does anything after breach of the condition which is inconsistent with the mortgagee’s title, he will have an. action against them for trespass or conversion.” Thomas, Mortg. 446; Dudley v. Hawley, 40 Barb. 397. In the case last cited it was held that a sale of the mortgaged property after default by the mortgagors or-