
    CAYETANO SORIA, Respondent, v. ALEXANDER V. DAVIDSON, Sheriff, &c., Appellant.
    
      Trial—requests, to charge, refusal not error.— Contract, nature of, as a consignment for sale on commission, or an absolute sale.
    
    When requests to charge matters of law are found on facts not conclusively proven, or when the requests are to charge facts not conclusively proven, it is not error to refuse the requests.
    Under an agreement whereby one is to consign goods to another, to be by the latter sold at any price he saw fit, he to remit to the former one the prices fixed for the goods at the time of shipment, but to remit only after sales made, and for the goods sold, the goods remain the property of the shipper until sold. Goods shipped under such an agreement are consigned for sale on a commission, equal to the difference between the price fixed and the price at which they are sold.
    Before Truax and O’Gorman, JJ.
    
      Decided July 2, 1886.
    Appeal from a judgment in favor of the plaintiff, and from an order denying a motion for a new trial on the judge’s minutes on all the grounds stated in section 999 of the Code.
    The facts appear in the opinion.
    
      W. Bourhe Cochran, attorney and of counsel for appellants,
    on the questions considered in the opinion, argued: argued: I. The motion “to dismiss the complaint on the ground that the proof established, not an agency on the part of Hermanee, but an absolute sale to him, and that consequently the goods were liable to be seized by the sheriff under the warrant of attachment,” should have been granted and it was error to deny the motion (Luden v. Hazen, 31 Barb. 652; Bonesteel v. Flack, 41 Ib. 435 ; Develin v. O’Neill, 6 Daly, 305; Morse v. Wickham, 14 Johns. 67; Baker v. Woodruff, 2 N. Y. 153; Johnston v. Brown, 37 Iowa, 200; Herring v. Willard, 2 Sandf. 420).
    
      II. The delivery of the goods to Hermanee, under the agreement as testified to by plaintiff’s witness, was not a consignment. If the consignee is at liberty to sell the goods at any price he likes, and to receive payment for the goods at any time he Ekes, and is only bound, if he sells the goods, to pay the consignor for them at a fixed price and a fixed time, then, whatever the parties may think, their relation is not that of principal and agent, consignor and consignee, but the aUeged agent is making on his own account a purchase from his alleged principal, and is again reselEng (Blood v. Palmer, 2 Fairf. 414; Eldridge v. Benson, 7 Cush. 483 ; Meldrun v. Snow, 9 Peck, 441; Sutton v. Crosby, 54 Barb. 80; Walker v. Butterick, 105 Mass. 237 ; Benjamin on Sale, §§ 382-597). It was also claimed by the plaintiff that the contract between the plaintiff and defendant was a “ del credere ” commission, but this position cannot be maintained on the conceded facts. Hermanee did not guarantee the solvency of his customers (Morris v. Cleasly, 4 M. & S. 56).
    
      Henry L. Vilas, and Jacob Fromme, for respondent.
   By the Court.

Truax, J.

This action was brought to recover the possession of 64,400 cigars. The property was taken by the defendant, as sheriff, as the property of one Hermanee on an attachment against said Hermanee. The plaintiff claimed that the property taken was not the property of said Hermanee; that it was his, the plaintiff’s property, and had been consigned by him to the said Hermanee for sale.

The- trial judge in a charge, to which there were no exceptions, left it to the jury to determine in whom the title to the cigars was; and the jury by their verdict determined that it was in the plaintiff. There was evidence to support this finding, and it wifi not be disturbed unless there is error in the refusal of the court to charge as requested by the defendant, or unless there is error in the court’s refusal to dismiss the complaint. The refusal to dismiss, and the refusals to charge as requested present the same points of law.

. The learned counsel for the defendant, at the close of plaintiff’s case, moved to dismiss the complaint on the ground that the proof established not an agency on the part of Hermanee, but an absolute sale to him, and that consequently the goods were liable to be seized by the sheriff under a warrant of attachment against Hermanee. This motion was denied and the defendant duly excepted. He also, at the close of the case, requested the court to charge that if Hermanee to whom the goods were consigned was at liberty to sell them at any price he liked, and received payment at anytime he liked, and was only bound, if he sold the goods, to pay the consignor for them at a fixed price at a fixed time, then, whatever the parties may have intended, their relation is not that of principal and agent, consignor and commission merchant, but the alleged agent is making on his own account, a purchase from his alleged principal, and is again re-selling.

He also requested the court to charge that when a person is at liberty to sell goods sent to him at any price he likes, and receive payment at any time, he to pay the consignor for them at a price fixed beforehand, it is a sale ; but if there be a right to return, then it is known as a sale or return.

He also requested the court to charge that in all cases of sale or return, the property vests in the purchaser from delivery, with the right to divest himself by a return, but until such return, or an attempt to return the property, the title is in the person to whom sent.

He also requested the court to charge that having sent the invoices and bills of lading to Hermanee without reservation, the property passed, and Soria lost all rights save stoppage in transitu, and when goods came into Hermance’s possession, and they all came into his possession, then the right of stoppage in transitu was at an end.

The court refused to charge each one of these requests and to each refusal the defendant duly excepted.

It was not error to refuse to charge the last request, because the evidence does not conclusively show that the plaintiff had sent the invoices and bills of lading to Hermanee without reservation.

It was not error to refuse to charge the next to the last request, because it was not conclusively established by the evidence that this was a case of sale with a right to return the property.

Under the agreement between the plaintiff and Hermanee the latter was to sell the goods which plaintiff had consigned to him at any price he saw fit, but was to pay for them at a price fixed at the time of the consignment. By this agreement the property never became the property of the defendant. He simply was entitled to the possession of the property as the plaintiff’s agent until its sale. His commission for selling the property was the price he received for the property over the price fixed upon at the time of the consignment.

It was never intended in the transactions between the plaintiff and Hermanee that the cigars should ever become the property of Hermanee. The goods were sent to him “ to. be sold through ” him, and he was to remit the money for the cigars on the 1st and 15th of each month. But this arrangement did not contemplate a sale to Hermanee. He was to remit only after he had sold the cigars to some one. Until he had sold them plaintiff remained the real owner, and as the defendant was not a bona fide purchaser for value, he acquired no title to, or right of possession in the property by virtue of his levjunder the attachment against Hermanee (Cole v. Mann, 62 N. Y. 1). The only way that Hermanee could give good title to the property was by selling it. For this reason it was not error to deny the motion to dismiss, or to refuse to charge the first two requests (Moore v. Dykes, 37 Hun, 491 and cases there cited).

The damages allowed by the jury were not excessive. The plaintiff claimed in his complaint that the cigars were worth §3,237.40. The witness Hermanee placed the same value upon them. The court charged the jury that they were to find the value of the goods at the time of the taking. To this charge there was no exception. The jury found this value to be $3,090, and there is some evidence to sustain the finding. The questions as to the form of the verdict and the judgment were determined against defendant on the former appeal (page 52, ante).

The judgment and order appealed from are affirmed, with costs.

O’Gorman, J., concurred.  