Schmidt v. Simpson

Scott, J. (dissenting):

I dissent, although in so doing I am not to be understood as expressing the opinion that pawnbroking transactions always or even generally fall within the purview of the Factors’ Act. The circumstances-surrounding this case are unusual. In the first place the jewels came lawfully into the hands of Weber, having been voluntarily intrusted to him by the owner for absolute sale and dis- • position. . There was, therefore, no larcenous talcing, no qualified possession'and no restriction upon the person to whom a sale was to be made, and, therefore, the authorities which have held the Factors’ Act to be inapplicable to shch case need not .be considered. Weber undoubtedly fell within the language of the act, being an “ agent, not having the'-documentary evidence of title, who [was] intrusted with the .possession of * * ’* merchandise for the purpose of sale.” The statute embraces two classes of factors or agents, those who have been intrusted with the documentary evidencé of title, and “ every such factor or agent,” who. not .having been intrusted with the possession of the documentary evidence of title, has been intrusted with the actual possession of the merchandise. It is not clear, just what meaning the Legislature intended to give to the qualifying word “ suóh,” but the most favorable meaning to attach to it, so far as concerns the respondent here, is to hold that the Legislature meant that the factors or agents whose author-

*515ity to dispose of merchandise might be inferred from the actual possession thereof, must be such as in the ordinary course of their known business might from the very nature of their business be persons to whom others would be likely to intrust merchandise, or the documentary evidence of title thereto, for purposes of ábsolute disposition. ' My only doubt is whether this is not giving too restricted a meaning to the word “such.” Certainly no more restricted meaning can be given to it, without destroying, in large part, the very purpose for which the act was passed. But under this closely restricted meaning, I still think that the act applies to the present case. The receipt in evidence shows that Weber was engaged in the business of “ Dealer and Broker in Precious Stones,” that his place of business was on Fifth avenue, and it appears that he had been designated to plaintiffs assignor by a well-known and reputable firm of jewelers as a person who dealt in jewelry and precious stones and who would be a proper person to undertake the sale of her jewelry. It may be assumed, without much violence, that he was also known to defendant as a dealer in such merchandise, and he was certainly a person to whom it would be both natural and reasonable that jewelry, or in a proper case the evidence of title thereto, might be intrusted for sale. In my viejvs therefore, Weber was an agent, within the meaning of our Factors’ Act, who had been intrusted with merchandise for the purpose of sale. Indeed I think that he would even fall within the language of the English Factors Act, 1889 (52 & 53 Vict. chap. 45), which speaks of a “mercantile agent” which has been defined to designate “ persons of the class ordinarily carrying- on the business of mercantile .agents” (Hastings Ltd. v. Pearson, L. R. [1893] 1 Q. B. Div. 62), for such is precisely what Weber appears to have been. Of course it cannot be successfully contended that jewelry per se is not merchandise. It is our common knowledge and experience that it is the subject of great business enterprise, of sale and barter, and of importation and exportation. True the jewelry owned by plaintiff’s assignor while retained by her for personal adornment was withdrawn from trade and for the time ceased to be merchandise as that term is ordinarily used, but when she determined to dispose of it and intrusted it to an agent for sale to any one who would purchase at her price she restored *516her jewelry to the channels of trade and reinvested it with the character of merchandise. The prevailing opinion intimates that, even if all the other statutory conditions be present,' still the defendant, because he is a pawnbroker,' cannot avail himself of' the protection of the Factors’ Act, and the inference is that if the loan had been made under like circumstances by a bank or banker the. Factors’ Act might be found to apply. I am unable to see the. force of this distinction. The business of pawnbroking is not anathema in the eye of the law, but, on the contrary, while strictly, regulated it is in other ways highly favored. In many countries it is deemed so important and honorable that it is engaged in by the government as an administrative monopoly. It is undoubtedly true that of recent years there has been a line of division between banking and pawnbroking, but it has not always, been so, and history -is full of instances in which' great bankers have loaned large sums of money upon the pledge of rare and valuable jewels. I can see no reason, therefore, why defendant, who is conceded to have acted in good faith, should be denied the equal protection of the Factors’ Act, merely because he pursues the perfectly lawful business of a pawnbroker. To test the applicability of the Factors’ Act by the nature .of the business carried on by the lender is to introduce an innovation which is not to be found in the language of the act itself, and which finds support in no reported case to which our attention has been called. The kind of business commonly.carried on by the lender might under some circumstances have a bearing upon the good faith of the transaction, but can have no such-application in the present case because the good faith of defendant was conceded. The authority given to Weber was not a restricted one in the sense in which that term is used in the cases cited by the respondent. In those the restriction was as to persons to whom the sale was to be made, and thus conferred only a very limited agency. Here the agency, so far as concerns a sale, was unrestricted, the only limitation being as to the price, a very common limitation in cases of sale by agents or factors. In my opinion the judgment should be revérsed and a new trial granted.

Judgment and order affirmed, with costs.