22 Wend. 659 | Court for the Trial of Impeachments and Correction of Errors | 1838
After advisement, the following opinions were delivered:
The principal question in this case appears to be, wether the plaintiff had such an interest in the property replevied as entitled him to maintain the action. To maintain this action it is not necessary that he should have the absolute interest in the property ; a special interest which would entitle him to possession is suflj
It appears that the plaintiff made advances which enabled the company to manufacture the paper in question, and that it was turned out to secure him for those advances. This gave him a qualified interest in the property to the amount he had advanced for the company j for this was previous to the delivery of any part of the paper to the defendant, and no interest whatever in the property could attach to the defendant before the delivery and the giving of the note specified in the agreement, unless the giving of the note was waived. As the plaintiff, therefore, had a qualified interest which was sufficient to enable him to maintain the action, did he by any act of his, divest himself of that interest, or was he divested of it by any act on the part of Beach, his agent ? The delivery of the property by the order of the plaintiff, on the contract with the defendant, could not have that effect, for by the terms of that contract, the defendant was to give his note payable in six months ; and had it been given, the note could have been transferred to the plaintiff before due, and no set-off could have been made against it, and thereby the interest the plaintiff had in the property would have been protected. The consent of the plaintiff", therefore, to have the property delivered on the contract under such circumstances, is no evidence of intention on his part to abandon his interest or claim in it. For as he had ordered it delivered on a contract already made, one of the terms of which was to give the note, he had no reason to expect that the property would be delivered and the right of property changed, unless the terms of the contract were complied with by the giving of the note stipulated.
Could Beach as his agent divest him of the interest he held in the property and transfer it to the defendant without his consent ? In my judgment he could not. As agent, Beach had no such authority. He was a special agent, and
But if it could be inferred, from the nature of the transaction, that Beach had a general authority as. to. the delivery of the property in question,, did he exercise that authority so as to change the rights of the parties ?. Did he do any act which could legally, divest the plaintiff of his interest in the property ? When- on the delivery of property sold, an act is to be done by the purchaser, and the seller delivers the property without requiring it to be done, the delivery is a waiver, and the property is transferred to- the purchaser, although he has not complied with the terms.of the contract; Lupin v. Marie, 6 Wendell, 77; Haswell v. Hunt, 5 T. R. 231; Chapman v. Lathrop, 6 Cowen, 110; 2 Kent’s Com. 496;. but where something is to- be done by the purchaser simultaneously, with the delivery,, which has- not been waived by delivering the property without requiring it to be done, the delivery, is conditional and does not become complete so-as to change the right of. property until the condition is complied, with, although the vendee get the possession of the goods;. for possession in such case is obtained under an expectation, on the part of the vendor that the terms of the contract will be complied with, and the vendor does not thereby part with his lien upon the property. 2 Kent’s Comm. 497. Palmer v. Hand, 13 Johns. R. 435. Haggerty v. Palmer, 6 Johns. Ch. R. 437. Hussey v. Thornton, 4 Mass. R. 405. Keeler v. Field, 1 Paige, 315. Copeland v. Bosquet, Wash. C. C. R. 588. When the delivery of property is a waiver of the condition, it must be so
It is questionable whether property which consists in heavy and cumbersome articles, which from their nature
The receipt given could not change the nature of the transaction. It was at best a mere memorandum to show
The paper in question in this suit was turned out to the plaintiff in payment of advances made by him to the manufacturers. The transaction was valid as between the parties to it, and passed the title of the property to the plaintiff, who as regards the Saugerties Company, had a right to maintain an action against any one who should interfere with it. It having been delivered to the defendant under a contract made with that company, without disclosing the ownership, does not take away the plaintiff’s right to maintain his action for its recovery, unless the fact of concealing its ownership from the defendant has led him to put himself in a situation in relation to the company by which he has sustained injury, and which he would otherwise have avoided.
It is true, he pretended that he had purchased notes or bills against the company with which he intended to pay for the paper on its delivery, instead of performing the contract made with them, by giving bis note at six months. But there is no evidence in this case, that he owned such notes or bills; there is nothing except his own declaration to that effect. Nor is it clear that had he then owned the notes or bills of the company, that he would have had the right to urge the possession of them as a justification of his conduct in
Then for the purpose of deciding this cause, we may regard this action as having been instituted in the names of the persons constituting the Saugerties company, though I think the right of the plaintiff, under the circumstances, somewhat .stronger than theirs. If they could have sus.tained an action, there can be no doubt that the judgment below should be reversed.
The contract was for the delivery of a certain quantity of paper, for which the defendant was to give his note at six months. No time is specified in the contract when the note was to be given. The giving of the notes, and the delivery of the paper, are consequently simultaneous acts. The giving of the note on the delivery, was therefore a condition of the sale; and the delivery of the paper was conditional, not absolute, unless there was a waiver of the note at the time of the delivery, by giving up the possession and control of the property and omitting to require the note. In Chapman v. Lathrop, 6 Cowen, 110, it was decided “ that where goods are sold to be paid for in cash, no time being agreed on for payment, both the delivery and payment are simultaneous acts, and the vendor may refuse to deliver without actual payment, the latter being a condition of the sale.” There the goods were delivered without exacting payment at the time. The next day the vendee’s clerk called to pay for them, and offered a note endorsed by the vendors and properly protested, and proposed to pay the balance in cash.
In Haggerty v. Palmer, goods were sold at auction to be paid for in approved endorsed notes at four and six months; and it was shown to be the usage in the city of New-York, where the goods were sold to deliver them to the buyer when called for, and for the vendors afterwards to send for the notes. The vendee, after he had received the goods, before he was called on for the notes according to the terms of the sale, stopped payment and assigned the goods to pay favored creditors. Held, “ that the delivery of the goods was conditional, and the vendee a trustee for them until the notes were delivered.” In Keeler v. Field, where a merchant contracted for goods, the price to be secured by his notes .endorsed by B. & C., and where the goods in the mean time were forwarded to his residence, it was held “ that the property was not changed until the delivery of the notes.”. In Palmer v. Hand, it was decided “that where gbods are sold to be paid for on delivery, if on the delivery being completed, the vendee refuses to pay for them, the .vendor has a lien for the price, and may resume the possession of the goods.” It was contended on the argument, that the doctrine of the above cases, and especially that of Haggerty v. Palmer was overruled by "this court, in-the case of Furniss v. Hone, 8 Wendell, 247. On an examination of that case it will be found, that the decision turned upon the ground that the defendant in his answer denied the terms upon which the goods were alleged in the bill to have been delivered, and averred that the goods were bought under a special agreement which did not require
I think the court below mistaken in supposing the first parcel of paper to be delivered absolutely to the defendant,
The property remained in the plaintiff tunil the delivery of the second parcel, subject to become the absolute property of the defendant, upon his giving his note, according to the terms of his contract. It was, then a conditional delivery ; the condition of which never having been performed, the right to control the property was in the plaintiff, at the time the defendant refused his note on the delivery of the last lot. There was nothing in the conduct of the parties on the delivery of the last lot, which showed that the vendor intended to part with the title to the property, and trust to the good faith of the defendant to perform his contract. On the contrary, while the paper was in the act of being
It was suggested on the argument by the chancellor, that the delivery of both parcels under the contract was an entire transaction,- and that the plaintiff could not split up bis cause of action and make two suits.of it. This suggestion is correct; and if the defendant had taken advantage of the objection in the proper manner, he might have availed himself of it in his defence. But to make it available, he should have pleaded the recovery for the other parcel in bar of the present action. He cannot, under the general issue, avail himself of this defence.
Some doubts were suggested in the opinion of the court below, in relation to sustaining this peculiar form of action, whatever might have been the plaintiff’s right to recover the value of the property. From an examination of the provisions of the revised statutes, relative to the action of replevin, I think this action well brought. The action lies
The judge erred in directing the plaintiff to be nonsuited. I am therefore, of opinion that the judgment below should be reversed, and that a venire de novo should be awarded.
The Chancellor delivered an opinion for an affirmance of the judgment of the supreme court, but the reporter not having received a copy of the opinion, is not able to give it to the profession.
Upon the question being put, Shall this judgment be reversed 1 the members of the court divided as follows :
In the affirmative: The President of the Senate, (Hon. John Tracy,) and Senators Dickinson, Downing, Edwards, Hull, Hunter, Lacy, Lawyer, E. P. Livingston, H. A Livingston, Loomis, Skinner, Spraker, Van Dyck, Wager—15.
In the negative: The Chancellor, and Senators Beck-with, Lee, Maynard, Veplanck, Willes—6.
Whereupon the judgment of the supreme court was reversed, and a venire de novo directed to be issued.
This case was decided in December 1838.