55 N.Y.S. 784 | N.Y. App. Div. | 1899
The defendant appeals from the judgment awarding $450 damages for converting the soda fountain, and urges that the judgment should be reversed because the plaintiff in the action did not specifically point out the fountain and assert his title as purchaser from Blackney, and cites in support of his contention Duke v. Welsh (16 J. & S. 516). In that case it does not appear that the goods taken by the sheriff on the execution were in the possession of the
It follows that the plaintiff having the right to recover for the soda fountain, the defendant has no ground for appeal. In addition to the soda fountain it appears that the defendant took five show cases, show bottles, scales and counters, purchased by the plaintiff
It is neither necessary nor wise to consider the question discussed as to the validity of the mortgage. • The mortgage was valid on its face. The case is barren of evidence showing precisely what was done by the mortgagor and mortgagee in performance of the oral contract under which some of the chattels mortgaged were retailed by Crandall, between the date of the mortgage, January 9, 1897, and June 22, 1897, when the plaintiff took possession. It does not definitely appear what the sales made by Crandall amounted to nor how the avails were applied. It does not appear how much new stock was purchased, how much paid for, and how much left unpaid for. It does appear that some goods were purchased by Crandall of a firm in Buffalo, for which the plaintiff subsequently paid, in whole or in part, but whether other goods were purchased by Crandall does not appear. It does appear that sixty dollars, arising from sales made by Crandall, were misapplied for his own benefit, without the knowledge of the plaintiff. The omitted facts referred to, and very likely other important facts, will be developed on a new trial, and the court will be better enabled to determine, as a question of fact, whether the mortgage, by virtue of the oral agreement between the mortgagor and mortgagee, as carried out by them, rendered the mortgage fraudulent.
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except Wabd, J., not voting.
Judgment reversed and a new trial ordered, with costs to the plaintiff, appellant, to abide the event.