113 N.Y.S. 910 | N.Y. App. Div. | 1908
Lead Opinion
The facts in this ease are not seriously disputed. Plaintiffs are engaged as manufacturers and merchants in the city of Mew York, and defendants are engaged in conducting a warehouse in said city. During the year 1903 a domestic corporation known as the James Freeman Brown Company was engaged in business in such city as the selling agent for mills which manufactured cotton goods in the United States. On March 28, 1903, the James Freeman Brown Company sold to the plaintiffs 50,000 yards of cotton duck and delivered to them a memorandum describing the goods as the brand “ Carson,” the description of the goods as “ 37'J-" 2.15 yard duck,” quantity “ 50,000 yards,” and price “ 6-J- cents per yard,” providing the terms were cash ten days less three per cent, or two per cent ten days, sixty extra; goods to be delivered “ 5,000 yards promptly; balance about April 15, 1903,” and to be shipped “ first 5,000 yds. to Aspinook Co., Jewett City, Conn.” It was also stated that a memorandum of the sale was sent to a mill in which the words “ sold for ” were substituted for the words “ sold to ” in the contract sent to the plaintiffs, and the words “ we have sold the above for your account” substituted in place of the words “we lecord your order as above, same to be mutually binding” in the
It seems that the advances that were made by the defendants to the James Freeman Brown Company were made on July 6 and July 11, 1903, and that the James Freeman Brown Company subsequently paid to the mills the price for this merchandise. The payments by the plaintiffs for the merchandise were made in August and September, the last payment apparently having been made on September 26, 1903. It appeared from the evidence that in the latter part of June, 1903, the James Freeman Brown Company sent a truckload of bales of the merchandise sold under this contract to the plaintiffs’ establishment in White street; that the plaintiffs told them that they could not then take the goods on account of lacking storage space, and that the truckman should deliver them to the Brown Company to keep them in their place
The substantial question in this case is whether the Brown Company had title to this merchandise when the loan was made by the defendants upon the merchandise. It is quite clear that no title passed by the original sale for the merchandise was not then in existence as it had to be manufactured. The sale was in form made by the Brown Company and there was an executory contract to manufacture and sell this merchandise. The Brown Company had acted, in' its relations to the plaintiffs in regard to this sale of the merchandise, as an agent for an undisclosed principal. The mills which accepted the order to manufacture the merchandise being the principal. The Brown Company was described in the memorandum note as the agent of the mills. It made a contract to sell to the plaintiffs certain merchandise to be manufactured. It gave the order to the nulls which accepted it and, when manufactured, shipped the merchandise to the Brown Company in compliance with the contract, and itnme
Thei-e is no question of estoppel presented, as neither the plaintiffs nor the bankers invested the Brown Company with an apparent title, or made any representation, or did any act, as to the title of the Brown Company to the property upon which the defendant relied. (Barnard v. Campbell, 55 N. Y. 462; Collins v. Ralli, 20 Hun, 246; affd., 85 N. Y. 637.) I do not consider that a tender of a portion of this merchandise to the plaintiffs at the end of June has any effect upon the title to the property. It does not appear what merchandise was tendered, or whether it was included within that invoiced to the plaintiffs prior to that time; but the only question that was then involved was whether the plaintiffs were bound to receive the merchandise, or whether it was the duty of the Brown Company to care for it, and charge the plaintiffs with the expense of caring for it until shipping orders had been received. The refusal of the plaintiffs was not a denial of title, or a refusal to accept the merchandise as a compliance with the contract, or which in any way involved the title to the merchandise, but was the result of a dispute in relation to the question of posses
The appellants also claim protection under the Factors’ Act (Laws of 1830, chap. 179), hut it seems to me clear that the defendants cannot claim a lien under that act, for the Brown Company was not a factor or agent of the plaintiffs, and, so far as appears, was not intrusted with the possession of any hill of lading, custom house permit or warehouse keeper’s receipt for the delivery of this merchandise. All that the Brown Company had was the simple possession of the merchandise, and that was not sufficient under the act to protect a person dealing with it
My conclusion, therefore, is that the judgment was right, and it should he affirmed.
Patterson, P. J., and Clarke, J., concurred; McLaughlin and Houghton, JJ., dissented.
Dissenting Opinion
I dissent. On the 28th of March, 1903, the plaintiffs entered into a written contract with the James Freeman Brown Company for the purchase from it of 50,000 yards of duck, the first 5,000 yards to he delivered at once and the balance about April fifteenth following. The goods at the time the contract was made had not been manufactured. The Brown Company, however, immediately thereafter had the same manufactured by a third party, and with its own money paid therefor. In pursuance of the contract they delivered to the plaintiffs the first 5,000 yards, and subsequent to April fifteenth offered to deliver the balance, which the plaintiffs refused to receive, though frequently requested to do so. After such request and refusal they delivered the same to the defendants to be stored in their warehouse, representing that they were the
The question presented necessarily depends upon where the title to the merchandise was when the defendants made the loans to the Brown Company. It was somewhere, not in theory, but in fact.« Certainly the plaintiffs did not obtain title by their contract with the Brown Company, because the merchandise was not then in existence. The same was thereafter manufactured for and delivered to the Brown Company, and it with its own money paid for the same. When the delivery was thus made the title passed to it, and it there remained until it passed either to the plaintiffs or defendants. It could not pass to the plaintiffs until delivery had been made to them or they had paid the Brown Company the contract price. The merchandise in question was never delivered to the plaintiffs, because they refused to receive the same; and at the time the defendants received it for storage in their warehouse, and thereafter loaned money upon the strength of that security, the plaintiffs had not paid the Brown Company for such merchandise or any part of it. The title, therefore, must have been at that time in the Brown Company; and if this be true, then that title passed to the defendants as security for the loans which they made.
It is suggested in the prevailing opinion that it is doubtful whether any title to the merchandise ever vested in the Brown Company, or that it was anything more than the agent of the mills to receive and deliver the manufactured article to the purchaser. In view of the conceded facts and findings, I am unable to discover any basis for such doubt. The Brown Company, for the purpose of carrying out its contract with the plaintiffs, procured the merchandise to be manufactured and paid for it; and when the same
It is also said, that when the invoices were sent to the plaintiffs this was an appropriation of the merchandise therein specified, and that title then passed to them or, in any event, when they had made the final payments thereon to the bankers. But suppose that after such final payment had been made and while the merchandise was in the possession of the Brown Company, the same had been destroyed by fire without the fault of either party, would the plaintiffs be compelled to bear the loss ? It seems to me not, for the reason that the title would still be in the Brown Company. This fact seems to have been recognized in the invoices, because each contained the statement “ Goods at Buyer’s risk when shipped.” Until that time they were at the risk of the seller.
The question is not whether there was such an appropriation of the goods as would have enabled the plaintiffs to maintain an action of replevin against the Brown Company, but whether the plaintiffs have shown such a title as enables them to recover from the hands of a concededly innocent third party which made advances thereon, relying on the apparent ownership of the Brown Company. I do not think they have, and for that reason it seems to me the judgment should be reversed and a new trial ordered, with costs to appellants to abide event.
Houghton, J., concurred.
Judgment affirmed, with costs.