
    (75 Hun, 409.)
    WYCKOFF et al. v. VICARY.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1894.)
    Sale—-When Title Passes.
    Where goods were bought in the name of a corporation which was never organized, by a person who represented himself as manager of the alleged corporation, the seller was not divested of title, and a purchaser of the goods from such manager, though for value and without notice, acquired no title as against the seller.
    Appeal from Niagara county court.
    Action by William O. Wyckoff and others against William H. Vicary to recover possession of a typewriter and desk. From a judgment in favor of plaintiffs, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals. Affirmed.
    Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
    A. A. Bradley, for appellant.
    Devoe P. Hodson, for respondents.
   LEWIS, J.

The plaintiffs were copartners. Their salesman, in October, 1891, called at an office in the city of Lockport, having upon the door the name of “Lockport Electric Railroad, Light & Power Company,” and found in the office Mr. Charles H. Laurence. He entered into negotiations with Laurence for the sale of a typewriter machine and a desk. Laurence told the agent that he was the manager of the Lockport Electric Railroad, Light & Power Company; that the company desired to purchase a typewriter and desk; that he would bring the matter before the directors of the company the following Monday, and have them authorize him tó make the purchase; and that if the company consented he would so inform the agent. Upon inquiry being made by the agent, Laurence stated that he should charge the machine and desk.to the company, if it consented to buy them. The agent thereupon delivered the machine and the desk at the office, and Laurence thereafter informed him that the directors had had a meeting, and authorized him to make the purchase; and the plaintiffs thereupon charged the company with the price of the machine and desk, amounting to the sum of $105. There had been some preliminary steps taken at this time looking to the formation of a company of the name mentioned, but it had not in fact been organized, and has not since. Laurence had been trying to organize the company, but had failed to do so. He had- no express authority to act for the company in making the purchase in question. The plaintiffs, learning the situation, made efforts to collect the $105 of Laurence, but failed. The defendant, in good faith, purchased the machine and desk of Laurence, ‘and paid him therefor $75. Plaintiffs, failing to get pay for their property, ■ replevied it from the possession of the defendant.

The jury, under proper instructions from the court, found that it was the intention of plaintiff’s agent to sell the property to the company, and not to Laurence. There being no such company in existence, it could not take title. Hence, there was no sale. Rodliff v. Dallinger, 141 Mass. 1, 4 N. E. 805; Lumber Co. v. Lesh, 119 Ind. 98, 20 N. E. 291. The defendant contends that Laurence, having assumed the right to purchase the property for a corporation not then formed, but which was expected to be organized, made himself liable to the plaintiffs for the purchase price of the property, and hence had the right to sell it to the defendant. Laurence, having falsely represented that he was authorized to purchase the property, was unquestionably liable to the plaintiffs for its purchase price, but it does not follow that the plaintiffs were qbliged to look only to Laurence. It was optional with them to-either hold him or reclaim their property. The sale which the plaintiffs intended and supposed they had made having failed, for lack of a purchaser, was not thereby turned into a sale to Laurence, who conducted the transaction. If plaintiffs had parted with possession of the property with the intention of passing title to Laurence, then the defendant, being an innocent purchaser- for value from Laurence, would have .obtained good title even if Laurence had obtained possession thereof by fraud. Davis v. Bechstein, 69 N. Y. 440. But the evidence tended to show, and the jury found, that the sale was not made to Laurence. He was. not, therefore, the owner of the property, and could not give the defendant a good title to it. The plaintiffs had not clothed him with apparent authority to sell it. They delivered the property, as they supposed, to a corporation. A bona fide purchaser of personal property other than commercial paper, although from one who has the possession, acquires no better title than that of his. vendor. Ballard v. Burgett, 40 N. Y. 314. Laurence was at the time of the delivery of the property in charge of the office, and ostensibly had charge of the affairs of the proposed corporation, but the evidence shows that he had no authority from the company to make the purchase. It cannot be successfully maintained that Laurence could give the defendant title to the property as agent for the corporation. The corporation, not having been organized, could not have an agent. Neither could it take title to the property. And then the defendant does not claim title from the corporation, but through Laurence. In the cases to which we are referred in the appellant’s brief, the vendors intended to confer the real or apparent ownership upon the party under whom the defendants claimed title and right of possession, which distinguishes those cases from the one at bar. The case was submitted to the jury with proper instructions, and we find no reason for disturbing the verdict. The judgment and order appealed from should be affirmed. All concur.  