[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 86
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 87
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 88
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 89 It is not claimed on the part of the respondent that any title to these goods was ever vested in Blossom. The sale was void by the statute of frauds. There was no delivery, acceptance, part payment or memorandum in writing. Hence the defendant was an undoubted wrong-doer in causing this property to be attached and sold as the property of Blossom. The cause was first tried in 1860, and the plaintiff had a verdict. The defendant appealed and a new trial was granted, Mr. Justice INGRAHAM writing the opinion, from which we extract the following: "The assignment transfers the bill for the prices of the goods and the goods themselves, but does not transfer any claim for damages, either for previous conversion of the goods, or for a trespass for taking them. Originally the assignment was only for the bill of the goods sold, made in January, 1855. The property was sold by the sheriff in June, 1855. The alteration of the paper, so as to include the sale of the goods, was two years after, or in 1857. It is clear the first assignment did not transfer this claim, but ratified the sale. The subsequent sale of the goods, *Page 91 after the conversion and sale with knowledge, did not give a right of action for the previous trespass or conversion. If it was of any avail, it could only be so on a demand, after the conveyance of the goods was complete."
There was a second trial in 1862, and a verdict was taken for the plaintiff, subject to the opinion of the General Term; and the General Term in 1863 set aside the verdict and ordered a new trial substantially upon the same grounds as before.
It is important first to determine what the plaintiff really got by his purchase from Gardner. The assignment, as drawn, was clearly only of an account for the goods against Blossom. But Gardner had no account or claim against Blossom. The sale to him was entirely void. I am unable to see how making out and assigning this account ratified the previously void sale. The sale could in no legal sense be ratified; but it could be rendered valid only by a compliance with the statute of frauds, which could only be by the concurrence of both the vendor and the vendee in some one of those things required by the statute. Hence, the assignment, as originally drawn, did no harm, if it did no good.
It must be conceded that the interlineation, so far as this case is concerned, gave the plaintiff no new rights, and in no way bettered his position. He must stand or fall by what took place when the assignment was executed.
The plaintiff could purchase the property or a claim for damages for its conversion, without a writing. As it was of the value of more than fifty dollars, he was simply required to comply with the statute of frauds; and this he did by paying the whole or a part of the purchase-money. If, therefore, by mistake, as now claimed, the writing did not express the intention of the parties, and did not cover the property really sold, the plaintiff did not lose the property, but can show, by parol, precisely what it was that he bought. Before the commencement of this suit, the parties to the writing got together and made the interlineation, so as to conform it to their original *Page 92 intention; so that it no longer, as evidence, in any sense, concluded even the parties to it, as originally drawn.
What, then, does the parol evidence show that the plaintiff actually bought of Gardner? Most clearly, the property. Gardner, by the sale, clearly meant to give him the right to pursue and recover the property, or its value. He says it was the agreement that he should assign the goods and the claim for the property to him. I think there would be but little difficulty, upon the evidence, in also holding that he assigned to the plaintiff his claim for damages for the conversion. (McKee v. Judd,12 N Y, 622; Waldron v. Willard, 17 id., 466; Sherman v.Elder, 24 id., 381; Whitney v. Slauson, 30 Barb., 276;Hall v. Robinson, 2 N.Y., 293.) But it is not necessary to go so far in this case. He purchased the property January 18, 1855, after it had been attached by Sheriff Page, who kept it in his possession until January 1, 1855, when he delivered it over to his successor in office, Sheriff Conover. For the conversion by Sheriff Page the plaintiff in this action could not recover, for the reason that that was before the sale of the property to him, and he never made any demand after the sale to him.
But this seizure of the property by virtue of the attachment did not change the title to the property. It still belonged to Gardner, and his sale of it conveyed the title to the plaintiff. After the plaintiff got the title, the defendant caused the property to be seized by virtue of the execution in his favor against Blossom, and sold; and this was a conversion of the property, of which this plaintiff had the right to complain. Every fresh interference with the property was a new wrong.
The defendant first caused the property to be attached by Sheriff Page; for this he became liable to Gardner, if he chose to prosecute him. He then caused the property to be seized upon the execution and sold; and this was a wrong to this plaintiff, for which he can prosecute him; and, hence, upon the plainest principles of law, and the plaintiff can recover.
And, for this last interference with the property, the defendant *Page 93 is liable without a previous demand. He was a naked wrong-doer, without any color of right. I do not think that the property was so in the possession of Blossom that even the sheriff could have justified a seizure of it; but it is sufficient, as against this defendant, to show that he caused the property to be wrongfully seized and sold after the plaintiff had purchased it.
These views lead to the reversal of the judgment and a new trial.
All concur, except LEONARD, C., not sitting.
Judgment reversed and new trial granted; costs to abide event.