The referee has found that the plaintiffs sold the oxen, for the recovery of which this action is brought, for the price of $180, to one William France; "and that it was agreed by and between the plaintiffs and France, that the oxen were to remain the property of the plaintiffs until they should be paid for by said France;" that he (France), subsequently sold and delivered them to the defendant, who purchased and received them without notice that the plaintiffs had any claim on them, and that they at the time of such sale had not been paid for.
Upon those facts, the referee found as a conclusion of law, that the plaintiffs were entitled to the possession of the oxen, or to the recovery of their value.
Conceding that France, under that agreement, took possession of the cattle, as a finding of a delivery of them by him to the defendant implies, such possession was not as owner. He, at most, was only entitled to the use of them until payment of the price agreed to be paid, and the title by the terms of the contract in the mean time continued in the plaintiffs. When he made the sale to the defendant, he had not paid the stipulated price, and consequently had not become the owner of the property.
This principle was fully settled by the decision of this court in Herring v. Hoppock (15 N.Y. Rep., p. 409.) In that case, the property was delivered to the purchasers, but its delivery was declared to be under a bargain for the sale thereof, and upon the express understanding, that the seller parted with, and that the purchaser acquired no title to the property, until the note given therefor was paid; and in default of such payment, the vendor was authorized to enter upon the premises of the purchaser and take and remove the property.
Judgments were subsequently recovered against the purchaser, and the property was levied on and sold under executions *Page 321 thereon. The vendor notified the officer of his title, but he on being indemnified proceeded to sell.
The judge at the Circuit, on those facts, charged the jury, that the plaintiff was entitled to a verdict; and the judgment entered thereon was affirmed by this court. That case is distinguishable from this, in the fact that the contract in terms acknowledged the delivery of the property, and the possession and use of it until default in payment of the purchase money was made.
The same principle was recognized and reasserted in the case ofHasbrouck v. Lounsberry (26 N.Y. Rep., p. 598). Assuming then that France had had no title to the property, when he sold and delivered it to the defendant, does the fact that he bought it without notice of the plaintiffs' right, affect their right of recovery?
I am unable to discover on what principle this can be claimed. The general rule is, that a seller could give no better title than he himself has.
The rights of the vendor in the cases which give color to a contrary rule were based on the ground, that the facts warranted the conclusion of an unconditional delivery.
That was the ground on which PAIGE, J. placed his decision inSmith v. Lynes (1 Selden, p. 41), cited by the defendant's counsel, in holding that the nonsuit was correct as to the defendants, Thompson, Schoonmaker, and Dean, the members of the firm of Thompson Co., purchasers from Lynes, their co-defendant, and yet he held that Lynes acquired no title to the goods, of which there had been only a conditional delivery to him.
I am aware that BOCKES, J., has in his opinion, in Wait v.Green (36 N.Y. Rep., 556), treated the remarks of Judge PAIGE quoted by him, as applying to cases of conditional, as well as an unconditional delivery, and the same remark is applicable to the statement of STRONG, J., in Fleeman v. McKean (25 Barb., Sup. Co. Rep., p. 474), which was obiter dictum merely, and not called for by the decision in that case, nor warranted by the facts and decision in Haggerty *Page 322 v. Palmer (6 John. Ch. Rep., p. 437), referred to by him.
I am aware too, that the opinion of Judge BOCKES referred to sustains the doctrine, that in a case like the present, the defendant's title would be perfect. He says: "Let it be conceded that the sale and delivery was conditional, that the agreement was, that the horse should remain the property of Mrs. Comins (the seller), until paid for, and that the plaintiff succeeded to all her rights, and that the defendant was a bona fide purchaser from Billington (Mrs. Comins' vendee); and the authorities are full, to the effect that the defendant will be protected in his title."
With due deference, I think his language is too strong. I will examine briefly the authorities cited by him not already referred to by me. In 2d Kent's Com., p. 497, the learned commentator does not express any definite opinion on the question; and, after saying that "the property in such a case does not pass by the delivery as between the original parties" says: "Though as to subsequent bona fide purchasers, or creditors of the vendee, the conclusion might be different." He does, it is true, subsequently, page 498, say that "if the delivery of goods precedes for a short time the delivery of the note to be given for the price, according to particular usage in that species of dealing, the delivery is understood to be conditional," and that the seller's right to the goods "will be good as against the buyer and his voluntary assignee, though not as against a bonafide purchaser from the vendee;" and cites the case ofHaggerty v. Palmer (6 John. Ch. Rep., p. 437, supra), decided by him as chancellor, which, on reference to it, will be found to be a case between the seller and voluntary assignee of the purchasers.
The case of Buck v. Grimshaw and others (1 Edw. Ch. Rep., p. 140, c.), was a case of a sale by the plaintiff to Grimshaw of a quantity of cotton, payable in cash on delivery on a specified day after the sale. Before that time, the seller on an order of Grimshaw, delivered a portion of the cotton without payment, and an unexpected failure of a *Page 323 mercantile house compelled him to stop payment, and rendered him insolvent before the day the purchase money was to be paid. The other defendants had made an advance to Grimshaw upon the cotton, and a bill of lading thereof was delivered to them, and they refused to give it up, and thereupon the action was commenced to compel them to make payment therefor or restore it to the plaintiff.
Vice-Chancellor McCOUN, after consideration of the facts says: "In whatever light this case is viewed, I think there is not enough to warrant the conclusion, that it was such a conditional sale or delivery of the cotton in question, as to entitle the complainant to reclaim it;" and then, after remarking that, if it were otherwise, the court might have great, if not insuperable difficulty in enforcing the claim against the other parties, he concludes with the remark that, "it is unnecessary to pass definitively upon that point."
The decision in Caldwell v. Bartlett (3 Duer, p. 341), was placed by BOSWORTH, J., in his opinion on the ground that the plaintiff had failed to show that any condition was annexed to or qualified the delivery of the goods, and that therefore the delivery must be considered absolute, and that the title to the goods passed to the vendee.
In Covill v. Hill (4 Denio, p. 323), BRONSON, Ch. J., after adverting to the nature of the transaction then under consideration, says: "In the case of a conditional sale it may be that a bona fide purchaser who parts with his money or who makes advances on the property, trusting to the credit of appearances, will obtain a good title or lien, on the principle which is sometimes applied that when one of two innocent persons must suffer from the fraud of a third, the loss shall fall on him who has enabled such third person to do the wrong, but it is unnecessary to decide that question, for there was no conditional sale, nor a sale of any kind from the plaintiff to Potter;" and in that case he, after referring to the exceptions in favor of trade in the case of money and negotiable instruments, says "but as to other personal chattels, the mere possession, by whatever means it may have been acquired, if there *Page 324 be no other evidence of property or authority to sell from the true owner, will not enable the possessor to give a good title."
In the case of Beavers v. Lane (6 Duer, p. 232), WOODRUFF, J., did not consider the defendants to be bona fide purchasers, and on that ground, and because the question whether there was ever in fact an absolute delivery to the purchasers, should have been left to the jury, the nonsuit in that case was set aside.
The case of Keeler and Freeman v. Field and others (1 Paige, p. 312), was a case of a conditional sale by the plaintiffs to Field, and a voluntary assignment by him to the other defendants to secure them from responsibilities which they had previously incurred, and to pay the surplus, if any, to his creditors generally, and the chancellor held the plaintiffs entitled to the goods received by the assignees.
The decision in The Western Transportation Co. v. Marshalland others (37 Barb. S.C. Rep., p. 509), was placed on the ground that the undisputed facts in the case "constitute a voluntary delivery of the grain, by the plaintiffs through their agents to the purchasers, although the cash has not been paid," and that they could not recover against the defendants holding as subsequent bona fide purchasers or lien holders.
The case of Crocker v. Crocker and others (31 N.Y. Rep., p. 507), was a case, where the plaintiff owning certain stock in a manufacturing company made an arrangement by which the legal title to it became vested in the defendant, Crocker, his brother, but was to be held for the benefit of the plaintiff. It was held that he, "having, through misplaced confidence, conferred on his brother the apparent right of property as owner, a bona fide purchaser of the stock from him in the course of commercial dealing, without notice, would be protected in his title against the latent equities of the plaintiff."
It will thus be seen from the statement of the decisions cited, in Wait v. Green, supra, that they do not sustain the doctrine laid down by the learned justice giving the opinion therein. *Page 325
That opinion concluded with the remark that "the judgment in this case is right and must be affirmed, with costs;" and the report states that all of the justices concurred, meaning, I infer, in the conclusion.
The brief statement of the facts, as there reported, warrant the inference that the concurrence of the other judges was upon the ground that there had been an absolute and unconditional delivery of the horse. It states that Mrs. Comins sold anddelivered it to Billington, and took his note, at five months, with interest, and that under the note and on the same piece of paper was a memorandum, signed by Billington, as follows: "Given for one bay horse. The said Mrs. Comins holds the said horse as her property until the above note is paid."
It is also stated that the note was not paid at maturity, whereupon the plaintiff, to whom it had been transferred, demanded the horse from the defendant, and upon his refusal to surrender it this action was commenced for its recovery, with damages for its detention.
It is not shown when that memorandum was made, nor does anything appear in reference to the character of the delivery.
The case is also reported in 35 Barb., Sup. Co. Rep., p. 585, and there it is stated that the defendant, in his answer, alleged that Billington, on the 2d day of June, was in possession of the horse, as the absolute owner thereof, and that he, on or about that day, in good faith, and for a valuable consideration paid to Billington therefor, purchased it and became and continued to be the owner thereof.
The proof, as there given, showed a claim of absolute ownership by Billington, and the purchase of the horse by the defendant, and that he gave, in exchange therefor, another horse and sixty-five dollars in money; that in September following, and more than a month before the maturity of the note the plaintiff, on hearing of Billington's sale to the defendant, called on him, and "showed him the note and condition or agreement attached to it, and demanded of him *Page 326 the horse or pay for him. The defendant refused to deliver or pay for the horse." Thereupon, it is stated, the plaintiff commenced this action, and claimed and obtained the delivery of the horse to him; and, upon the trial at the Circuit, the jury, under the direction and order of the justice presiding, found a verdict for the plaintiff. The General Term, however, on review, held that the defendant was entitled to judgment, and so ordered.
BACON, J., in giving the opinion of the court, begins by saying: "This action seems to have been either very imperfectly tried or meagerly reported. So far as any direct evidence is concerned, two very essential points are either undetermined or are to be assumed or inferred mainly from other facts proved in the case."
He then says, referring, I presume, to one of those points: "It seems not to be entirely clear that the plaintiff purchased anything but the promissory note which Billington gave on the purchase he made of the horse from Mrs. Comins."
He then, after some further comments, says: "The other point, as to the delivery and possession of the horse at and after the giving and transfer of the note, is left equally at large so far as any direct evidence is concerned; but the implication is perhaps strong enough, from what appears in the case, to justify the conclusion that the horse was delivered by Mrs. Comins, the vendor, to Billington, the vendee, upon the latter executing and delivering to the former the note and memorandum annexed thereto."
He then, after referring to the purchase of the note by the plaintiff, remarks, "To put the case, then, in the aspect warranted by the evidence, and the reasonable inferences to be drawn from all the circumstances, it may fairly be stated thus: There was a conditional sale of the horse to Billington, which was accompanied or followed immediately by an unconditional delivery and a continued possession by him. Billington was thus clothed with the apparent right of absolute ownership; and, claiming to be such owner, with the accompanying indicia, he sold the property to the defendant, who purchased and paid *Page 327 for it in good faith, for a valuable consideration, and without knowledge of any claim or equity in a third party, or anything to put on inquiry after any such claim." And adds: "Upon this state of facts, I think the defendant, upon well settled principles, is entitled to be protected."
In that conclusion I fully concur, and upon those facts this court, on appeal, clearly were right in concurring with the learned justice who gave the opinion in his concluding remarks, that "the judgment in this case is right," although the reasons assigned for it may not be satisfactory or consistent with legal principles.
It is certain that a part of the language of Judge BACON in the commencement of his opinion is applicable to the case, as reported in this court. It is "very meagerly reported," and tends to give a very erroneous understanding of the actual decision made.
In the statement of the case, and the opinion as reported in the Supreme Court, there are two facts stated on which this court may have affirmed the judgment; one of them is, that the note only was transferred by Mrs. Comins to the plaintiff, and that he had no right to the horse; and the other, that the note had not matured when the demand of the horse was made and the suit commenced.
In the case under review, there was not an absolute and unconditional delivery of the oxen to France. He held noindicia of actual ownership, at the time of the sale by him to the defendant, and there was nothing to indicate an ownership, unless perhaps the mere possession of them, and a sale, with no other evidence of right, was not sufficient to divest the title of the true owner.
My conclusion, therefore, is that, for the reasons above stated, the judgment in this case is right, and must be affirmed with costs.
All the judges concurred for affirmance except JAMES and MURRAY, JJ., who could not distinguish the case from Wait v.Green (36 N.Y.R.).
Judgment affirmed. *Page 328