The test of a bailment is that the identical thing delivered is to be returned. If the obligation of the receiver be to return another thing of equal value, it is a sale. Foster v. Pettibone, 7 N. Y. 433. Applying this rule, we think the conclusion of the court below was correct, for the reasons assigned by Mr. Justice Dwight.
The order must be affirmed, with costs.
[The following is the opinion at special term.]
Dwight, J.The undisputed evidence in the case showed that the defendant was a bona fide purchaser from George Titus of the property claimed by the plaintiffs. The only question was whether by such purchase he acquired title to the property as against the plaintiffs, and that depended mainly upon the construction and effect to be given to the agreement between the plaintiffs and George Titus.
I am still of the opinion which I had at the circuit, that this agreement can have no other effect than that of a chattel mortgage; such seems to be the plain import of all its provisions.
It provides, first, for advances to be made by the plaintiffs to George Titus to enable him to carry on the business of tanning, such advances to be either of hides or of money with which to buy hides, and that such advances shall be charged to him and be on interest; next, that the hides furnished or bought with the money furnished by the plaintiffs, shall be theirs while tanning and after *32they are made into leather “ as security for all sums as may be due them as aforesaid; ” next, that the leather as fast as manufactured shall be sent to the. plaintiffs to be sold for the account of George Titus, the proceeds of sale, after deducting a commission for themselves, to be credited to him in payment of the 'advances and interest with which he is charged; and, lastly, that the plaintiffs shall have the right to take possession of any of such property whenever they deem it necessary for their protection and security, with the right of sale as follows, and out of the proceeds of such sale to deduct, besides certain expenses, all sums due as aforesaid, accounting to said Titus for all balances and paying over the same.
All these provisions clearly treat the advances to be made by the plaintiffs, whether of money or of hides, as creating an indebtedness from George Titus to them, and contemplate a pledge of the hides and leather as security for such indebtedness. If so, the plaintiffs had no absolute title to the property while in the possession of George Titus, but only a' lien for their security, which could be enforced, as against purchasers, only against those who had notice of such lien. And'the defendant having purchased without notice, either actual or constructive, acquired title to the property.
The plaintiffs, however, call attention to a provision of the agreement by which, as they say, the hides bought with money advanced by them were to be bought in their name, and insist that under this provision the hides were absolutely their property from the time of their purchase by George Titus. But the proof shows that the hides in question were not in fact bought in the name of the plaintiffs. That the conversion, if any, by George Titus was of the money and not of the hides. He used the money in every respect as his own ; deposited it in bank to his own credit and in the same account with his own moneys, and drew upon such account for all the expenses of the business which he carried on in his own name, including the purchase of hides in question.
It will not be contended that one whose money is wrongfully converted can recover property, bought with such money, from one who has purchased it in good faith from the party who was guilty of conversion.
Upon the whole it seems very clear that the plaintiffs had no title .to the property in question which they could maintain against defendant. The motion for a new-trial is therefore denied.
v Order affirmed.