(dissenting): I do not concur with Mr. Justice Patterson. This, cause, of action is based'upon an allegation that by an agreement between the plaintiffs and the J. Freeman Brown Company the plaintiffs made loans and advances to the corporation, to be secured by the hypothecation and pledge of certain merchandise and the proceeds of the sale thereof, the corporation agreeing to keep and maintain a margin of at least ten per cent between the value of the merchandise and other securities hypothecated and pledged by it and the *250.amount of its indebtedness at any time to the plaintiffs; that it was ■a part of the agreement for the plaintiffs to authorize and permit the ■corporation to deliver from time to time to purchasers ánd customers of its own the merchandise hypothecated and pledged to the plaintiffs under the said agreement, but that the plaintiffs consented to such . -deliveries and the relinquishment of their right to the possession of ■ the said merchandise upon the condition'that every purchaser from the J. Freeman Brown Company, receiving merchandise previously .hypothecated and pledged to the ¡plaintiffs,, should be given notice, at ■or about the time of the receipt thereof, that the plaintiffs had an interest therein or lien thereon, and that the money due therefor was payable only to the plaintiffs. There is no. allegation that this merchandise was actually delivered. to the plaintiffs, or that their lien thereon was anything but an agreement by the corporation that Its merchandise should be subject to a lien in favor of the plaintiffs ■for the amount of the advances that the plaintiffs had made. It is further alleged that prior to the 7th day of December, 1903, the plain"tiffs had" made large loans and advances to the corporation, and on that •day a petition in bankruptcy was filed against the company; that at "the date of filing that petition the corporation was indebted to the, ¡plaintiffs in excess of tlie merchandise and other securities held by the plaintiffs as security for said indebtedness, and that there was included in said merchandise hypothecated and pledged to the plaintiffs certain cotton yarns and cloth particularly described in the complaint; that the plaintiffs authorized and permitted the corporation, to deliver •.such cotton yarns and cloth according to the practice and" regular •course of dealing under the agreement alleged; that the. aforesaid , •cotton yarns and cloth were delivered to the defendant and accepted -and retained by that company, with notice that the plaintiffs had a lien thereon or interest therein, and that the amount due therefor was payable only to the plaintiffs. Then follows an allegation that the ■cotton yarn and cloth were of the “ agreed value ” of $"46,720.17 and that by reason of the premises the defendant had promised and .agreed to pay that sum to the plaintiffs. There is no allegation that the defendant promised to pay to the corporation, or to any one -else, the alleged value of these goods, or any promise by the defendant made either to the plaintiffs or the corporation to pay anything, for the goods, except the implied promise which it is claimed arose *251because of the facts stated. The plaintiffs having some sort of a lien on this merchandise, if it was alleged that the goods had been .sold by the corporation to the defendant and that in consideration thereof the defendant had by express promise agreed to pay the -consideration for the sale of the goods to the plaintiffs, the plaintiffs would be entitled to recover the amount that the defendant had •expressly promised to pay to them under the principle established in Lawrence v. Fox (20 N. Y. 268).
The plaintiffs rely upon McLachlin v. Brett (105 N. Y. 391); but in that case the merchandise, to recover the value of which the ^action was brought, never belonged to Hall & Co., who had shipped •the goods to the defendants, and notice was given to the defendants before they received the goods that Hall & Co. were not the owners •of the goods that they were shipping to the defendants in pursuance of .a contract which they had made for the sale of goods of a like character.
Here the goods belonged to the corporation that delivered them to the defendant, but the terms upon which these goods were delivered ,are not set forth. Whether the corporation sold the goods to the defendant, or delivered them for safekeeping is not disclosed, the •agreement between the corporation and the plaintiffs being that the plaintiffs would be entitled to. the moneys realized upon the sale of the goods. There is nothing, however, to show that notice of this agreement was given to the defendant. I do not think that the mere fact that the defendant had notice that the plaintiffs had :a lien upon the goods raised an implied promise of the defendant to pay the plaintiffs the value of the goods delivered when they were delivered to the defendant with the express assent of the plaintiffs. Whatever lien the plaintiffs had upon the goods was lost by a delivery of the goods to the defendant with the consent of the plaintiffs, and there is no allegation that the defendant was notified of any agreement between the corporation and the plaintiffs by which the amount that the defendant was to pay for the goods was to be payable to the plaintiffs.
I think, therefore, that the demurrer should have been sustained.