
    Robert H. M’Curdy and others v. James M. Brown and Henry Hicks.
    (Before Duer, Campbell, and Paine, J.J.)
    May 14;
    June 26, 1852.
    The action for the delivery of personal property under the Code is substantially the former action of replevin.
    Hence the plaintiff can only recover upon a legal title—he must show an absolute or special property giving him an immediate right to the possession.
    To constitute a lien creating a legal title actual possession of the property is indispensable.
    A person who advances money upon the faith that the proceeds of goods which remain in the possession of the owner will be applied to his reimbursement, although he may thereby acquire an equitable lien, has not a legal title to the possession of the goods, and cannot therefore maintain an action for their delivery.
    When the title of the plaintiff in such an action is denied by the answer, the defendant is not bound to prove the title set up in his answer, until that of the plaintiff has been established.
    If, from the defect of proof, the complaint is dismissed, the defendant is entitled to a judgment for the value of the goods.
    Exceptions overruled, and judgment dismissing the complaint affirmed with costs.
    This was an action to compel the delivery of forty-nine bales of cotton and woollen cloths of the value of $3706 52. The sheriff had delivered possession to the plaintiff upon the usual affidavit and undertaking.
    The cause was tried on the 24th March, 1852, before Mr. Justice Bosworth, who, upon the motion of the defendants, dismissed the complaint, and ordered judgment against the plaintiffs for the value of the goods in question.
    The plaintiffs appealed from this judgment, and the cause was now before the court upon the record and a bill of exceptions.
    The pleadings were in the usual form: the plaintiffs averring that they were entitled to the immediate possession of the goods in question, which they had demanded from the defendants, who had refused to deliver them, and claiming judgment for such delivery with damages; and the defendants denying the right of the plaintiffs, averring ownership in themselves, and claiming judgment for a return of the goods, or their value, with costs.
    
      The bill of exceptions sets forth that the plaintiffs, upon the trial, in order to maintain and prove the issues upon their part, called as a witness,
    Henry G-. Thompson, who, being duly sworn, testified as' follows: I was one of the firm of Thompson & Company, of this city, and remember the sheriff’s taking the goods in question in this action, under the process in the same; the goods were what are commonly called Georgia Plains, and there were forty-nine bales of them. The assignees of Thompson & Co. then had the store, the defendants. I was in the store as their agent, and had charge of these goods as such: Thompson & Co. had previously stopped payment; they stopped the twentieth of September last; the goods in question had been in the store, some since Hay last, some since June last, some since July . last, some since August last, and some had been brought in the same month in which they were taken by the sheriff.
    The plaintiffs had sold under the arrangement between them and its, and we had delivered, pursuant to their order, a large amount of similar goods; we had delivered all they had sold; what goods they sold were retained by us, until we were order- ■ ed by them to deliver the same; they gave us their own notes for the goods they sold; they had sold about twenty-five thousand dollars’ worth of plains before we had any paper from them; they then gave us their own notes to a certain amount on account. They sold the goods on commission, and gave us their own notes on account, as we asked for them; I think the thirteenth of September was the first time they were in advance to us.
    Hy father, Orrin Thompson, transacted the business with the plaintiffs for us; ■ he was not a member of our firm, but was authorized to do so.
    The goods in question in this suit were in our store, Ho. 8 and 10 Spruce street, at the time they were taken by the sheriff; we had been in that store since about 1849; the store passed to the assignees on the twentieth or twenty-second of September last; no change was made in the exterior of the store up to the time the goods were taken; our name continued upon the door, and the assignees’ name was not up.
    The plaintiffs’ counsel next called as a witness on their part,
    
      Oebot Thompson, who, being duly sworn, testified as follows: I was formerly a member of the firm of Thompson and Company, but ceased to be such several years since; after I left the firm, I still exercised a supervision over its business.
    In the year 1850, the plaintiffs spoke to us about selling this kind of goods, the Georgia Plains; the year before that, we had sold all we made to a house in Boston, and had declined making for any other party, except upon orders; about November or December, 1850, I told the plaintiffs that if they could sell about eight hundred bales of the goods in this market, we would supply them; they said it was too early then to be able to tell how many they could sell. In January or February of the next year, Mr. McCurdy told me he had seen the jobbers, and they had engaged about 400 bales; soon after this, the failure of Austens & Spicer put a damper on the market, and he told me he could not engage to sell more that season; we were to deliver about one third of that quantity in the first half of each of the months of July, August, and September.; these goods were made at Tariffville, and are of three or four kinds, called copperas, black and white, and sheep’s grey of two shades; we made and were ready to deliver our quota for July and August, in all about $35,000 worth, and in August the plaintiffs advanced us $25,000 in their own notes; they were to sell at six months, and to guarantee, and were to have a commission of either 5 or 6 per cent., without any further charge; in September they advanced $25,000 more, which brought us in debt to them.
    I requested plaintiffs to furnish us with a memorandum of the kinds and quantities wanted, that we might deliver them; we could not .deliver them without such a memorandum, because they had been hypothecated, with liberty to substitute others for any we.wished to dispose of; my anxiety to deliver arose from a fear that the jobbers would back out from their engagements, as the goods were dull.
    It was our understanding with the plaintiffs that we should not ourselves sell any of this kind of goods in this market until after October, and this quantity was all that was to be' offered here; we never told them the goods were hypothecated.
    Being cross-examined on the part of the defendants, this witness further testified: The goods were not charged to the plaintiffs, until sent for by them, and delivered; they were not liable to Thompson & Co., except for such as they sold, and then only under their guarantee; in settling up sales they gave their own notes, and not the notes of the purchasers, because they guaranteed the sales; if plaintiffs had sent for their goods, as we requested them to do, they would have been delivered; we were anxious they should send and take them, because the jobbers were getting sick of the goods at the prices.
    In settling for sales, plaintiffs gave their own notes; that is the usual way.
    At the time' they made the second advance, nothing was done except to ask for and receive it; no further security was asked for by them.
    The advance was all in their own notes. (It was agreed by counsel that these notes had been paid.)
    If the goods had not been sold, and called for by them, they would have been on our hands; there was no understanding that plaintiffs should pay for any not sold.
    Thompson & Co. stopped on a Saturday, September twentieth ; their stopping was entirely sudden and unexpected; I was here the day before, and knowing the amount they had to pay, had spoken to some of my friends, who said they could have the necessary amount, and I left the city Saturday morning, at eight o’clock, and when I left, had no idea but that the house would go on; we had no expectation, when the second advance was made, of stopping; om* arrangements had been made up to January; a call was made on us that we did not anticipate, and that occasioned our stopping.
    Being again directly examined, this witness further testified: When the second advance was made, plaintiffs had not sold that amount of the goods, and that fact might have been adverted to; it was mentioned that what the jobbers had engaged from plaintiffs, with what the latter had sold, would cover the $50,000; and I requested plaintiffs to send for the goods; I do not know that they never did send for them.
    The counsel for plaintiffs next recalled on their part,
    Henry G. Thompson, who further testified: There is about $7,500 still due the plaintiffs out of their second advance; the goods in suit were worth about $3,700; we made about 800 bales of the plains, the last season; we had some on hand over from the year before; we sold none of the last year’s through any other house than the plaintiffs.
    It was admitted and agreed, by and between the counsel for the respective parties, that the value of the goods in question was $3,706 52.
    The plaintiffs here rested their case, and the defendants’ counsel moved for a nonsuit, on the ground that the plaintiffs had shown no title to, or right to the possession of, the goods in question.
    The court so held and decided, as also that the matters so given in evidence on the plaintiffs’ part were not sufficient to entitle them to a verdict.
    To which ruling and decision of the said court the plaintiffs’ counsel excepted.
    
      H. Ketchum, for the plaintiffs,
    insisted that the judge erred in granting the nonsuit, inasmuch as the proof given on the trial was sufficient to show that the plaintiffs were entitled to the possession of the goods, and that it ought at any rate to have been submitted to the jury; he farther contended that the defendants, having shown no property in the goods, were not entitled to a judgment for their value.
    
      Wm. M. Evarts contra—
    The following cases and authorities were cited upon the argument: Haille v. Smith, 1 Bos. & Pull. 563; Holbrook v. Wight, 24 Wend. 169; Grosvenor v. Phillips, 2 Hill, 145; 2 Kent Com. 820, note (5). 1 Starkie on Ev. 142.
   Bv the Court. Duer, J.

The action given by the Code for the delivery of personal property is substantially the former action of replevin, changed, indeed, in its name, and modified in its form, but in its principle and its object identical. The plaintiff asserts a legal title to the property of which he claims the delivery, and to entitle him to the judgment which he seeks, it is a legal title that by the proper evidence he must establish. Hence the plaintiffs in this case were bound to prove upon the trial that they had an absolute or special property in the goods in question, and an immediate right to their possession. If they have failed in this necessary proof they were properly nonsuited, and the judgment for the agreed value of the goods founded upon the nonsuit must" be affirmed. This view of the nature of the action for the delivery of personal property was adopted by this court in the case of Robert v. Randall (3 Sandford Sup. C. R. 707), nor do the provisions of the Code, as it seems to us, admit of any different construction. The plaintiffs could not have obtained a delivery by the sheriff of the goods in question, but upon an affidavit, stating that they were the owners, or were lawfully entitled to the possession by virtue of a special property therein (Code, § 207, sub. 1), nor can we doubt that the facts which were thus necessary to be stated to sustain their claim to a delivery are exactly those which they were bound to prove upon the trial to entitle them to a judgment.

The remarks that have now been made, are not merely prefatory, but involve in truth our decision of this case. The facts in evidence upon the trial, not only clearly show that the plaintiffs were not the owners of the goods in controversy, but in our opinion are entirely insufficient to prove that they had any special property, by which they could lawfully demand the possession. The sole owners of the goods were Thompson & Co., whose title was not meant to be divested by the agreement between them and the plaintiffs, until actual sales were made to j-obbers or other persons, and the plaintiffs were their agents to effect such sales, acting under a del credere commission, and the notes, which they advanced to Thompson & Co., were a loan of their credit, not the consideration of a purchase. The principal witness for the plaintiffs expressly stated that if the goods were not sold by the plaintiffs as agents, they must have remained on the hands of Thompson & Co., and that they were not liable to Thompson & Co., except for such as they sold, and then only under their guaranty. Ho evidence was given on the trial that there had been an actual sale of the goods in question, before they were demanded from the defendants, and if the plaintiffs meant to rely upon a sale to a third person as giving them a right to claim the delivery, it was upon them that the burden of proving the fact certainly .rested. The judge, upon the trial, had no right to presume its existence.

It was very faintly contende'd upon the argument that the plaintiffs were entitled as absolute owners to the possession of the goods described in their complaint; but it was strenuously insisted that they had acquired a lien to the extent of their advance which gave them a special property and a lawful right to demand the possession. It is, however, the settled law that to the creation or continuance of a lien which a court of common law can recognise or enforce, the actual possession of the property upon which it is held to attach, is indispensable (Godwin v. the London Assurance Co., 1 Black. 104; Kinlock v. Craig, 3 Term. R. 119, 783; Combie v. Davies, 7 East. 5; Rice v. Austin, 7 Mass. 197); and we apprehend that the books may be searched in vain for a case in which a lien conferring a legal title has been held to arise merely from' an advance upon goods that remained in the possession or under the- control of the original owner. Such a lien may, indeed, in some cases, be created and preserved by a mortgage in writing, but never by a mere implication of law. In the present case the original owners, Thompson & Co., retained the possession of the goods in question until they were passed to the defendants as their assignees; and that they should retain the possession until sales were made, and an order for a delivery to the purchasers given by the plaintiffs, seems to have been a part of the agreement between them and the plaintiffs.

It is this circumstance, the continued unbroken possession of the original owners, which distinguishes this case from those on which the learned counsel for the plaintiffs so strongly relied— Haille v. Smith, 1 Bos. and Pull. 563; Holbrook v. Wight, 24 Wend. 196; and Grosvenor v. Phillips, 2 Hill, 145.

In each of those cases there was a change of the possession by a delivery of the property by the original owner to a third person, as the agent or trustee for the plaintiff, and in each the ground of the decision was, that the possession of the agent or trustee was that of the plaintiff. By this possession the lien, which was relied on as giving a special property and legal title;, was perfected.

On the other hand, the case of Nichols v. Crist, 3 Price, 527, which was not cited in the argument, is quite decisive in favor of the defendants. In that case, a del credere factor had accepted bills drawn upon him by the owner of the goods, upon the faith of their consignment to himself, and the goods were actually put on board a vessel for the purpose of being delivered to him; but, as it appeared that the control of the property was still retained by the owner, it was held that the factor had not acquired a lien divesting the title of the owner.

The complaint, in the case before us, avers that the defendants were in possession of certain goods and chattels of the plaintiffs, to the immediate possession of which the plaintiffs were entitled; and upon these averments issue is taken by the answer. We are clear in the opinion that the judge rightly decided that neither of them was sustained by the proof. Whether the plaintiffs had an equitable lien which, upon a complaint properly framed, we might have enforced, is a totally different question, which, in this action and on the pleadings as they stand, we have no right to decide or consider. It is sufficient to say that the judgment in this suit will be no bar to any equitable relief to which they may be entitled, if that relief shall be properly sought.

The objection that the defendants, having no property in themselves, were not entitled to a judgment for the value of the goods, is certainly groundless. They were not bound to show property in themselves until a jorimA facie .title had been established by the plaintiffs, and as, from the failure of this necessary proof, it resulted that the goods had been wrongfully taken from their possession, ,they were necessarily entitled to a judgment for their value. The judgment rendered is thus the only judgment that could have been given. '

It is therefore affirmed with costs.  