I dissent. On the 28th of March, 1903, the plaintiffs entered into a written contract with the James Freeman Brown Company for the purchase from it of 50,000 yards of duck, the first 5,000 yards to he delivered at once and the balance about April fifteenth following. The goods at the time the contract was made had not been manufactured. The Brown Company, however, immediately thereafter had the same manufactured by a third party, and with its own money paid therefor. In pursuance of the contract they delivered to the plaintiffs the first 5,000 yards, and subsequent to April fifteenth offered to deliver the balance, which the plaintiffs refused to receive, though frequently requested to do so. After such request and refusal they delivered the same to the defendants to be stored in their warehouse, representing that they were the *281sole owners of the same, and there was nothing upon the merchandise when delivered indicating that any other person had any interest therein. After the merchandise had been thus stored with the defendants they loaned to the Brown Company certain sums of money, taking the merchandise as security for the payment of the same, and they did not then know that any one claimed an interest in such merchandise other than the Brown Company. At the time these loans were made the plaintiffs had not paid the Brown Company for the merchandise pledged with the defendants. Under such circumstances I do not see how the plaintiffs can maintain an action of replevin.
The question presented necessarily depends upon where the title to the merchandise was when the defendants made the loans to the Brown Company. It was somewhere, not in theory, but in fact.« Certainly the plaintiffs did not obtain title by their contract with the Brown Company, because the merchandise was not then in existence. The same was thereafter manufactured for and delivered to the Brown Company, and it with its own money paid for the same. When the delivery was thus made the title passed to it, and it there remained until it passed either to the plaintiffs or defendants. It could not pass to the plaintiffs until delivery had been made to them or they had paid the Brown Company the contract price. The merchandise in question was never delivered to the plaintiffs, because they refused to receive the same; and at the time the defendants received it for storage in their warehouse, and thereafter loaned money upon the strength of that security, the plaintiffs had not paid the Brown Company for such merchandise or any part of it. The title, therefore, must have been at that time in the Brown Company; and if this be true, then that title passed to the defendants as security for the loans which they made.
It is suggested in the prevailing opinion that it is doubtful whether any title to the merchandise ever vested in the Brown Company, or that it was anything more than the agent of the mills to receive and deliver the manufactured article to the purchaser. In view of the conceded facts and findings, I am unable to discover any basis for such doubt. The Brown Company, for the purpose of carrying out its contract with the plaintiffs, procured the merchandise to be manufactured and paid for it; and when the same *282was delivered to it, that moment, as already indicated, the title passed to it. It is true the Brown Company was designated on the invoices as “ Mill Selling Agents,” but it and no one else contracted with the plaintiffs. It is perfectly obvious that the manufacturer of this merchandise could not have enforced any contract with the plaintiffs, because no such contract was in existence. It is also equally obvious that the bankers Ladenburg, Thalmann & Co. nev.er had title to the merchandise. They made advances to the Brown Company on the accounts collectible from the plaintiffs — which were assigned to them—the duplicate invoices being sent them as evidence of such accounts, but they never acquired any title to the goods by reason thereof.
It is also said, that when the invoices were sent to the plaintiffs this was an appropriation of the merchandise therein specified, and that title then passed to them or, in any event, when they had made the final payments thereon to the bankers. But suppose that after such final payment had been made and while the merchandise was in the possession of the Brown Company, the same had been destroyed by fire without the fault of either party, would the plaintiffs be compelled to bear the loss ? It seems to me not, for the reason that the title would still be in the Brown Company. This fact seems to have been recognized in the invoices, because each contained the statement “ Goods at Buyer’s risk when shipped.” Until that time they were at the risk of the seller.
The question is not whether there was such an appropriation of the goods as would have enabled the plaintiffs to maintain an action of replevin against the Brown Company, but whether the plaintiffs have shown such a title as enables them to recover from the hands of a concededly innocent third party which made advances thereon, relying on the apparent ownership of the Brown Company. I do not think they have, and for that reason it seems to me the judgment should be reversed and a new trial ordered, with costs to appellants to abide event.
Houghton, J., concurred.
Judgment affirmed, with costs.