The defendant's argument concedes that no title passed to him by his contract with Mrs. Church. He is therefore to be regarded as a stranger, and is liable in this action, not only to the owner of the goods, but to his bailee in possession. (2 Sand. on Pl. and Ev., 1151; Bowen v. Fenner, 40 Barb., 383.)
The case shows that the seller took the hops to the railroad *Page 496 depot, and left them in charge of the clerk of the plaintiffs, subject to their order. The referee found, as a matter of fact, that there was a delivery of the property to the plaintiffs, which, I think, was well supported by the evidence. This was sufficient to enable the plaintiffs to maintain trespass against the defendant, who took them without any title whatever.
It was claimed that the sale was by sample, and the plaintiffs had not yet accepted the property so as to vest the title. But as there was a delivery, it was quite immaterial whether it was an absolute or conditional delivery. A vendee in possession of goods, under an executory contract, though he never acquires the title as against the vendor, may have his action against a stranger who carries them away.
But if there was no actual delivery of the property to the plaintiffs, I think there was a constructive delivery. As between buyer and seller, the title passes without delivery, if such was their intention. As the purchase price was paid, there is no difficulty growing out of the statute of frauds. There is no evidence in the case which tends to show that the plaintiffs reserved the right to inspect the bales; but, on the contrary, the evidence is quite satisfactory that the parties intended to complete it by doing all that was necessary to perfect the title in the plaintiffs.
I think the referee was wrong in holding that it was a sale by sample. (Beirne v. Dord, 5 N.Y., 105.) But if it was, the seller did all he could to pass the effectual control of the goods from himself to the buyer, and this was a sufficient delivery to pass the title. (2 Pars. on Contr., 336.)
The purchasers had the opportunity to inspect the goods, and I think they could not afterward object that the bulk was not equal to the sample, either for the purpose of rescinding the contract, or of maintaining an action upon an implied warranty. (Hargous v. Stone, 5 N.Y., 73.)
Upon the question of damages, the rule adopted by the referee was recognized and affirmed by this court in the case ofRomaine v. Van Allen (26 N.Y., 309).
The judgment should be affirmed.
Judgment affirmed. *Page 497