The authority given Putnam to sell the goods named in the contract of conditional sale did not transfer to him the plaintiff's title to them. It was merely authority to pass the title by a sale of the goods in the ordinary course of business. Until such sale, or, if there was no sale, until the plaintiff was paid for the goods, his title continued as against Putnam. Holt v. Holt, 58 N.H. 276. It was also valid as against the defendant, Putnam's assignee, notwithstanding the contract did not contain an affidavit of its good faith and was not recorded, as required by Laws 1885, c. 30, ss. 1, 2. Adams v. Lee, 64 N.H. 421. The plaintiff was entitled to the judgment that was ordered.
Putnam's authority extended to the use of the proceeds of the goods sold for the purchase of other goods and for such other purposes as he saw fit. He did not act as agent of the plaintiff in purchasing goods, but on his own account. In other words, the proceeds of the goods sold were loaned by the plaintiff to Putnam, the same as the money represented by the notes. Putnam was not obliged to use any of the money for the purchase of other goods, but was at liberty to appropriate the whole to any other purpose. The plaintiff, therefore, acquired no title to the goods purchased with the proceeds of the original goods by the fact that the purchase was made with money to which he might have asserted ownership.
The second agreement did not give the plaintiff title to any goods. It was executory in form and substance. It merely gave the plaintiff the right to take possession of goods and hold them as collateral security for the payment of his notes, — the right to have them pledged to him whenever he required it to be done. The pledge was not consummated because the possession of the goods was never delivered to the plaintiff. Brown v. Wiggin, 16 N.H. 312; Young v. Kimball, 59 N.H. 446. The plaintiff, having no title to the goods nor any possession of them, cannot maintain this action in respect to them.
Whether he would be entitled, as against the defendant (Hauselt v. Harrison, 105 U.S. 401; Adams v. Lee, 64 N.H. 421), to a specific performance of the contract giving him the right to demand a *Page 75 pledge of the goods (1 Sto. Eq. Jur., ss. 714-721, 746, 788, 790), is a question that is not raised.
Exception overruled.
CARPENTER, J., did not sit: the others concurred.