[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 389
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 390 There was evidence upon the trial of this action tending to prove that the plaintiff understood that the purchase of the cheese was to be made by Andrews on joint account with the defendants, the Messrs. Leggett. Similar purchases had been made in the same manner on previous occasions, and there was strong ground for claiming that the plaintiff had reason to suppose that this one was of the same character. The defendants, the Messrs. Leggett, however, when called upon by the plaintiff in New York in regard to the cheese, and when it was claimed by him, and possession *Page 392 of the same demanded, repudiated the idea that the purchase was made by them, or that they had any interest in the purchase; and they then insisted that the cheese was sold to George W. Morgan Co., for whom they claimed they had sold it, and made advances to Morgan Co. on that account. The judge in his charge to the jury so stated the position of the defendants, the Leggetts, and no exception was taken to this portion of the charge, nor any claim made that they occupied any other or different position as to the cheese in this respect. By taking this position, the Messrs. Leggett are estopped from claiming title by virtue of a sale to them by the plaintiff, and the plaintiff was the owner of the cheese, unless he had sold it to Messrs. G.W. Morgan Co., as the defendants claimed.
The question whether there was a sale to George W. Morgan Co. was fairly submitted to the jury, and they found adversly to the defendants. There was much testimony to support the verdict. The plaintiff had never negotiated with Morgan Co., and there is no evidence that he had knowledge of the existence of that firm, or that he intended to make a contract with them. They were at the time insolvent, and their business was substantially closed, and as this question was found adversely to the defendants, it follows that there was no sale to Morgan Co., and as the Messrs. Leggett repudiated the sale, that the property belonged to the plaintiff, and he had a right to demand and to take possession of the same.
The question whether the sale was made upon condition that the money should be paid upon delivery of the cheese, or whether a credit was given to Andrews, was also submitted to the jury. There was evidence showing that the plaintiff did not intend to part with the possession or the title to the cheese until the money was paid. Andrews had represented that the money was on the way from the defendants, the Messrs. Leggett in New York, at the time when the shipment was made. This representation was untrue in point of fact. The evidence shows that nothing had been *Page 393 said on the subject of credit; that when on former occasions sales of a similar character were made to the defendants, no credit had been given or solicited. The plaintiff certainly had strong ground for believing that the money was to be forthcoming, and the question whether a credit was given, if it was in the case, was one for the jury, and not entirely a question of law.
But even if there was error in reference to the point considered, as to whether the sale of the property was upon condition that the money should be paid upon its delivery, it is a complete answer to the point last considered, that as the defendants, the Messrs. Leggett, denied that any sale or delivery whatever was made to them, and rested their defense upon an alleged sale to George W. Morgan Co., under which they claimed title, and as upon the whole facts independent of the question of credit, the plaintiff was entitled to recover, the condition of the sale was not material, and the judgment would not be affected thereby. If, as last stated, the plaintiff was entitled to recover as the case stood, then the judge was right in refusing to charge the jury as requested: that if they found that the sale was made to Andrews and the Messrs. Leggett, that the title passed on delivery. The judge declined to do this, or to change his charge as made, because there was some evidence to establish that the delivery was obtained by fraud. The judge had charged the jury, that if the plaintiff was induced to let the cheese go by the fraud of Andrews, and if the delivery was obtained by fraud, then the plaintiff might rescind the effect of that delivery, pursue the property, and reclaim it from the vendees or purchasers. There was evidence tending to show a preconceived design to obtain possession of the cheese without paying for it, and that a fraud was intended, and no exception was taken to this portion of the charge, and the request last stated might very properly be refused upon this ground.
The defendants, the Messrs. Leggett, claim that they had sold and delivered the cheese to one Seabury, a bona fide *Page 394 purchaser, without notice or knowledge of the plaintiff's claim, and therefore they are not liable in this action. It is true, that they had advised Seabury that they had purchased the cheese for him. The evidence fails to show, however, that the possession had been delivered, or the title had been transferred to Seabury. The cheese had been deposited in a warehouse which contained other cheese which belonged to Seabury, and the receipt for the same, and the insurance was in the name of the defendants. It also appears that the purchase was not entered in the books of the Messrs. Leggett, until after the demand by the plaintiff, and Seabury had not paid any money on account of the cheese. Besides, after the cheese had been replevied by the plaintiff, the defendants retook the property upon executing the security required by law, thus claiming a right and assuming to own the same, and to retain the possession thereof. Under such circumstances, as there is no ground for insisting that Seabury had possession or control of the cheese, and that the defendants had no claim thereto when the action was instituted, nor any ground for holding that the defendants, the Leggetts, had acquired a lien for an advance of $5,000 upon the cheese in question to George W. Morgan Co. At the time of the alleged advance, and according to the finding of the jury, the plaintiff had not sold or intended to sell the property to George W. Morgan Co., or delivered the same to Andrews on their account, or delivered it to them. He had no knowledge, nor did he consent that the receipts should be taken in the name of Morgan Co., and Andrews obtained them from the station agent fraudulently, not because Morgan Co. were the owners, but under the false pretext that this firm had a special contract with the railroad company in regard to freight, and Messrs. Morgan Co., were wrong-doers in assuming any right or exercising any control over the freight. The Leggetts, at the time of the pretended advance, had no bill of lading or receipt, and advanced no money on the strength of any instrument.
The "Factor's act" (2 R.S. [5th ed.], 76), has no application *Page 395 to any such case as is here presented. It only applies when the shipment is made with the consent of the real owner, in the name of another. (M. T. Bank of Buffalo v. F. M.N. Bank ofBuffalo, 60 N.Y., 52; Newland v. Woodruff, id., 73.) It is the consent of the owner in intrusting his goods to, and allowing a bill of lading in the name of another, thus conferring ostensible ownership and a right of control in the person named, which shields parties entirely innocent, who, on the faith of the evidence furnished, to which the owner has consented, and of which he has knowledge, have made advances on the property shipped. The act was not intended to deprive actual owners who had not parted with their title, or who by fraud and without any fault on their part, had lost control over it. This act has nothing to do with a case where property has been wrongfully taken from the possession of one, and then is fraudulently appropriated.
It may also be remarked that the Messrs. Leggett did not send the money on the faith of a receipt given in the name of Morgan Co., or upon any papers made out relating to the cheese, but upon a dispatch from that firm sent before the cheese was shipped. They, therefore, have no ground for claiming that they obtained a lien under the act referred to. Nor can said lien be upheld where the possession or title has not been parted with by the owner. The defendants were entitled to no deduction on account of the freight. As the defendants wrongfully exercised control over the cheese, the money paid for freight cannot be recovered back. (Silsbury v. McCoon, 3 N.Y., 379.) Nor does the evidence show that the value was enhanced, and that the cheese was worth more in New York than at Darien, where it was shipped. The defendants also set up a lien for freight, but as the cheese was shipped without plaintiff's knowledge or consent in the name of Messrs. Morgan Co., it was not apparent upon what ground such a lien can be maintained.
The objection to the evidence of the plaintiff, to the effect that he did not intend to deliver the cheese to the defendants, *Page 396 without payment of the purchase-price, becomes unimportant in view of the charge of the judge, which submitted to the jury the question whether there was a sale of the cheese to Messrs. Morgan Co. Upon this question the case mainly turned, and if the testimony was erroneously received, it could not prejudice the defendants' rights.
We discover no errors in any of the rulings upon the trial, and the judgment must be affirmed.
All concur
Judgment affirmed.