124 N.Y.S. 241 | N.Y. App. Div. | 1910
Lead Opinion
This is an action upon, an assigned claim to recover the possession of certain ¡jewels or their value pawned with thedefendant, alicensed pawnbroker. Plaintiffs assignor, an English woman, was traveling with her husband, in this country, when, on the evé of her sailing :for home from .the city of New York, certain circumstances arose-, in consequence of which she'desired to sed a portion of her personal jewelry. She and her husband took the jewelry to a reputable shop upon Fifth avenue and offered it for sale. She was told that the house did not buy jewelry over the counter and she was recommended' to one Charles A. Weber as a broker in jewelry.
Mrs. Kufeke and her husband went to Weber’s office, told him how she had come to visit him and. exhibited the jewels and requested him to sell them for her. She placed a price upon-each of the articles and stated that they were only to be sold at the prices she had given. Thereupon there was a discussion about the charges for-cabling and it was finally agreed that Weber was to have a tén per cent .discretion on the prices given to save the cost' o.f cabling and he was to receive five per cent on the sale, and she handed him the jewels and received the following paper :
“Charles A. Weber,
“ Dealer and Broker in Precious Stones,
“ 320-322 Fifth. Avenue,'
“ New York.
“ Telephone 734 Madison Square.
“August 14, 1906.
“ Deceived from
'. “Mrs. f, L. Kufeke, • - - -
“ Delaford,
“Waterloo Park, Liverpool,
England.
1 Opal and diamond bracelet. .............i... 200 00
1 Buby “ . “ .......,.......... 325 00
1 Emerald' .“ “ ..........750" 00
1 diamond Crescent ............ - ....... 2, 750 00
. 1 diamond necklace... ;............'.......... 1, 750 00
. 1 diamond pendant.-................ .......... ,1, 600 00
1 Emerald & 2 stone Dias ring................ . 60Ó 00'
*511 1 Sward Emeralds Dias Babies 2 Saphs..:....... $250 00
1 3 stone Diamond ring....................... -600 00
1 5 stone Buby Bing Siam...................* . 200 00
15 “ '“ “ ...... .....:........... 250 00 small
1 Buby and 2 diamonds set as ring............. 750 0.0
'. ■ 10,020 oo .
' 250
9, 770 00
“CHABLES A. WEBEB,
“ The above to be sold' Pr. Frank: P. Webeb.
Less 10 pr. cent on all,”
The $250 subtracted from the total represented one of the pieces of jewelry at that, price which was withdrawn and not left with Weber. Mrs. Iiufeke and her husband sailed the next day, and the same day Weber pawned the jewelry with the defendant for $4,500. ' ' .
Some time afterwards Mrs. Kufeke, in response to a letter of inquiry, received a reply from Weber’s trustee in bankruptcy that he had become a bankrupt and that the pawn tickets were held subject to her order. ■ She. thereafter assigned her claim to the plaintiff and this suit was brought.
Upon the trial a stipulation was entered into conceding most of the above facts as outlined, and that no question of the identity of the goods would be raised and that for the purposes of the trial it was admitted that the jewelry was worth $8,000, and “that at the time the defendant advanced the said money.he was wholly ignorant of the fact that the said goods were not owned by the said Weber, or that said Weber was employed by Mrs. Kufeke to sell at the prices named in said Schedule A, or that he was employed by her to sell thé same, and that defendant acted in good faith as a pawm broker and made such advances on the security of the pledge of the said jewelry.”
A question of law only is presented' upon this record. The appellant conceded upon the argument in this court that under the common law there would be no defense. He claimed, however,
It seems to me that the Factors’ Act does not apply. It was undoubtedly passed for the purpose of relieving ordinary mercantile transactions from the strict rule of the common law; ■ its purpose was to facilitate business. It covered two classes of transactions : First, those of factors or other agents intrusted with the possession of any bill of lading, custom house permit or warehouseman’s receipt for the delivery of any merchandise, that is to say, the ordinary documentary indicia of ownership customarily used in commerce taking the place ’of the actual possession of bulky articles, and customarily passing in the course of trade as good delivery, and made use of. with banks to obtain the ordinary advances upon goods arriving and to arrive. Second, and every such factor or agent, that is, a factor or agent ordinarily doing the kind of business theretofore enumerated in the statute, who shall be intrusted with the possession of any merchandise for the purpose of sale or as the security for any advances to be made or obtained thereon. -
While it is true that it is conceded in the case that he acted in good faith, yet that does not help him if Weber was not such factor or agent as was covered by the terms of .the statute. Weber committed larceny and could transfer no better title than he had.
In Heilbron v. McAleenan (1 N. Y. Supp. 875), a pawnbroker’s case, Van Brunt, P. J., said: “There was no general power of sale given to Jácquin, only the power to sell and deliver to a particular person, collect the money from this particular person and receive from such purchase money his brokerage, circumstances precisely analogous to those presented in the case of Soltau v. Gerdau [48 Hun, 537].” I do not understand that a restriction to sell to a particular person is any greater restriction than to sell at a particular price.
I do not think that the Legislature ever intended to include such a. transaction as is here presented within the provisions of the Factors’ Act.
■ The judgment and Order appealed- from should, therefore, be affirmed, with costs to the respondent. '
. Ingbaham, P. J., Lahghlin and Millek, JJ., concurred; Scott, J., dissented.
Dissenting Opinion
I dissent, although in so doing I am not to be understood as expressing the opinion that pawnbroking transactions always or even generally fall within the purview of the Factors’ Act. The circumstances-surrounding this case are unusual. In the first place the jewels came lawfully into the hands of Weber, having been voluntarily intrusted to him by the owner for absolute sale and dis- • position. . There was, therefore, no larcenous talcing, no qualified possession'and no restriction upon the person to whom a sale was to be made, and, therefore, the authorities which have held the Factors’ Act to be inapplicable to shch case need not .be considered. Weber undoubtedly fell within the language of the act, being an “ agent, not having the'-documentary evidence of title, who [was] intrusted with the .possession of * * ’* merchandise for the purpose of sale.” The statute embraces two classes of factors or agents, those who have been intrusted with the documentary evidencé of title, and “ every such factor or agent,” who. not .having been intrusted with the possession of the documentary evidence of title, has been intrusted with the actual possession of the merchandise. It is not clear, just what meaning the Legislature intended to give to the qualifying word “ suóh,” but the most favorable meaning to attach to it, so far as concerns the respondent here, is to hold that the Legislature meant that the factors or agents whose author-
Judgment and order affirmed, with costs.