On Rehearing.
FROVOSTY, J.Moss, one of the defendants, was a maker and repairer of jewelry. He had an office on the second floor of a building on one of the principal streets of this city, and also a workshop on the third floor of the same building. What this office consisted of, or what he kept in it, the record does not show. In a small way be bought and sold diamonds. The defendant Fink, in answer to the question, “Q. lie didn't have any store?” answered, “He used to carry around a little paper of loose goods all the time; yes, sir.” From this, and from the evidence generally in the case, we understand that Moss was more of an artisan — a maker and repairer of jewelry and diamond setter— than merchant; and that he traded only in a small way in jewelry. That he did this, however, was well known among the trade.
The plaintiff firm has a large jewelry establishment in this city. It had had some dealings with Moss in a small way, had sold him “some small things,” for which he had duly paid, when the transactions which have given rise to the present controversy took place.
On March 16, 1900, he came into the store of the plaintiff firm, and said he had a customer for a pair of diamond earrings, and asked plaintiff to let him have the goods to' show to his customer; and again, on April 4, 1906, he came with another similar request for another pair of diamond earrings; and both times plaintiff complied with his request
A material point in the case is as to what were the terms and conditions on which the two pairs of earrings were thus put in the possession of Moss. The only witness on that point is the senior member of the plaintiff firm, and his testimony is accepted as true. He says that he fixed a price on the earrings, and let Moss have them on the condition that he should either return them or pay the price; that he did not sell them to him, but fixed the price low enough for him to make a profit in selling them to some one else. On both occasions the witness put this price on a piece of paper, and handed it to Moss, and made a memorandum for himself of what goods he had thus intrusted, and of the price set on them. This price was $502 on the first pair, and $975 on the second.
*1029No time seems to have been fixed within which Moss should return the goods or pay for them, and the evidence does not show what was contemplated in that regard. It does show, however, that plaintiffs made inquiries of Moss, and were told that his customers were still deliberating.
• As a matter of fact, he had taken the first pair of earrings on the day after he got them to the pawnbroker’s shop of the defendant Fink and sold them to him for $300. This was $202 less than the low price set upon them by plaintiff.
The second pair of earrings he pledged at the pawnbroker’s shop of one Koritzky for $405. The date of this pledge is not shown.
In the early part of February the defendant Fink had bought some small loose diamonds of Moss, and had left in his hands 171 small diamonds to be set in a pin or brooch. While the work was in progress, Fink kept an eye on his 171 diamonds. In one place he says that he went to Moss' shop every day; at another place he says that he went once or twice a week. After the pin had been apparently completed, Moss would not give it up, saying there was still something to be done to it. He had already been paid the price agreed on for doing the work, $]10. The pin was worth $1,500. Fink had called at Moss’ shop on several consecutive days to demand the pin and not found him in, when, determined to have the pin, he sought him out at his house; and Moss then acknowledged that he had pledged the pin at the shop of one Keil for $500. He at the same time said that he owned a pair of diamond earrings worth $975, which he had pledged to Koritzky for $405, and that Fink could have them if he would redeem them and pay the $500 to Keil in redemption of the pin. This Fink agreed to do, and on the same day did do.
On the evening of that day, April 28th, a Saturday, Moss came to plaintiff with a story that two armed men had come to his shop and robbed him of the diamonds. Plaintiff did not believe him and had him arrested, and at once instituted, with the aid of detectives, a search among the pawnbrokers’ shops of the city. On the first visit to the shop of the defendant Fink he denied that he had had any dealings with Moss. When Moss saw that his tale of robbery would not hold, he confessed; and Fink also, on the second visit to his shop, acknowledged his transactions with Moss, and offered to restore the goods on being reimbursed the several sums which he had paid out, namely, the $300 to Moss, the $405 to Koritzky, and the $500 to Keil.
Plaintiff then brought this suit against Fink and Moss, demanding in the alternative a return of the goods or payment of the price set upon them.
Moss made no defense. Fink contends that the transactions between Moss and the plaintiff were sales; that Moss became owner of the goods, and could convey a valid title to them; that, at all events, the plaintiff firm is estopped in the premises, because it clothed Moss with the indicia of ownership, thereby enabling him to commit the fraud; and that, whenever one of two innocent persons must suffer by the acts of a third, he who enables such person to occasion the loss must sustain it.
The question of whether Moss became the owner of the goods or not depends upon what was the agreement of the parties. The parties had a perfect right to make any agreement they chose in that regard. The rights conferred upon Moss by that agreement were: (1) To become owner of the goods on paying the price set upon them; (2) to sell the goods to some one else at a cash price of not less than that set upon them. The right was not conferred upon him to buy the goods on a credit; or, in other words, to become debtor to plaintiff for the price of the goods. What*1031ever money he received from the person he sold the goods to was to be plaintiff’s money; and, if he failed to account for it, he would be criminally responsible. The goods were not sold to him, and the only way in which he could become the owner of them was by paying cash for them. By the terms of the arrangement Moss could not sell the goods on a credit. Either the goods or the money would have to be in his hands, to be delivered to plaintiff.
The goods not having been sold to Moss, he could transfer no title to them. Nemo plus in alium transferre potest quam ipse habet. 5 Cyc. 207; 24 A. & E. E. 1103.
The learned counsel for the defendant Fink contend that the transaction was of the kind known at common law as “sale and return,” and the Court of Appeal took that view. We repeat, the nature of a transaction is what the parties agree that it should be; and the distinct agreement in this case was that the goods were not sold, or agreed to be sold, on a credit to Moss, but that the only way he could become the owner of them was by paying cash for them. For the distinction between such an agreement and what is commonly known as “sale and return,” see Sturm v. Boker, 150 U. S. 323, 14 Sup. Ct. 99, 37 L. Ed. 1099, and note; Sturtevant v. Dugan, 106 Md. 587, 68 Atl. 351, 14 Am. & Eng. Ann. Cas. 679.
Before passing to the consideration of how far plaintiff may be estopped, we will note that the law of agency can play no part in this case. Moss had no mandate to sell the goods at less than the price set upon them, and still less had he any mandate to give them in payment of his debts. And Fink did not deal with him as the agent of the plaintiff firm, but as the owner of the goods.
Coming to a consideration to the estoppel, it is a plain proposition that the mere possession of movable property is not such indicium of ownership as will enable the possessor to convey a good title as against the true owner. If it did, the borrower or hirer of a horse could validly sell it. The owner must have done something more than merely confide the possession of his property to the possessor before the latter can sell it or create a lien upon it. He must have to some extent accredited the title of the possessor— clothed him with more pronounced indicium of ownership than mere possession.
This may be done in various ways, and one way would be what the plaintiff firm did in this case, namely, consent that a vender of jewelry exhibit the jewels as part of his stock of goods, or as belonging to him.
“If a wine merchant be left in possession of wine, the fair inference is that it is his own, and a person may be justified in advancing money upon the security of it.” Per Bramwell, L. J., in Meggy v. Imperial, 3 Q. B. D., 717.
The decision in Conner v. Hill, 6 La. Ann. 7, is founded upon estoppel, agency, and ratification. From the facts as stated, the grounds of estoppel do not appear; but the writer of the present opinion knows that the flatboats coming down the Mississippi river before the War loaded with western produce were for sale, and that usually, if not always, those in charge of them had authority to sell; so that Anderson, who was in charge of the fiatboat in that case, had more-than mere possession. He had a possession which, according to custom, was accompanied by tbe power to sell. True, the owner had not consented to his being thus clothed with apparent authority to sell, but his son and agent had done so for him. It was upon this the court must have founded the estop.pel, in so far as the decision is based on estoppel.
True, Moss was more of an artisan than merchant; but it was in his character of merchant that both plaintiff and Fink dealt with him. Plaintiff consented that he should exhibit the earrings to his customers as belonging to him, and that he should do so *1033in his quality of a trader in jewelry. Fink, knowing him to be a trader in jewels, was justified in buying from him. It follows from this that Fink acquired a good title to the first pair of earrings. Although, we must say, that the great disparity in, price gives some room for suspicion even as to that pair of earrings.
With respect to the second pair, Fink is not in a position to invoke equitable estoppel. For him to be in a position to do so, it would be necessary that he should “not only have been destitute of knowledge of the real facts, but should also have been without convenient or ready means of acquiring such knowledge.” 16 Cyc. 730. And he must have been led to change his position for the worse. 16 Cyc. 722.
“Notice is to be distinguished from knowledge, and, if the buyer has notice of facts which would put a reasonably prudent man upon inquiry which would have resulted in the ascertainment of the adverse interest sought to be enforced against him, he will be deemed to have taken with notice, and cannot assert the rights of a bona fide purchaser.” 26 A. & E. E. 1175.
In so far as the earrings were taken in reimbursement of the $500 which Fink had to pay to Keil for redeeming his pin, his position was not changed for the worse, since that amount would have had to be paid to Keil even if Moss had never had possession of the earrings, and since it is not pretended that he was deprived of any recourse which he would otherwise have had against Moss. As to the circumstances under which one who has received property in payment of an antecedent debt may be considered to have parted with value, see 26 A. & E. E. 1171”, 1173.
By the time Fink came to deal with Moss for this second pair of earrings, Moss had become utterly discredited. He was a confessed embezzler. 1-Ie was no longer a merchant or trader having valuable goods for sale, but was a diamond setter who had pledged the goods of his employer and stood under the necessity of confessing his crime because of his inability to redeem the pledge. He was not a merchant offering to sell goods out of his stock, but at best an ex-merchant who was proposing to the person whose property he had embezzled that the latter should rescue from the pawnbroker’s shop a certain piece of property and pay himself out of the margin between value of tbe thing and the amount for which It stood pledged. Fink testifies that he had lost confidence in Moss and would not trust him out of his sight with the $465 -for redeeming the earrings from Koritzky. The fact itself, well known- to Fink, that Moss was a diamond setter, to whom valuable jewelry was likely to be intrusted by third persons, was in itself sufficient to put Fink upon inquiry. We cannot help thinking that Fink was a willing victim, and that, if it had not been for the chance of getting back his $500, he would have dealt with Moss with a good deal less of confidence.
As to this $465, we put our decision distinctly on the fact that the earrings were not acquired from a merchant having them for sale to the public generally, but were redeemed from a pawnbroker’s shop at the request of an embezzler as a means of settlement for the embezzlement.
It is therefore ordered, adjudged, and decreed that our former decree be reinstated and made the judgment of this court.