
    Hasbrouck v. Lounsbury.
    The owner of a chattel and a vendee who receives possession upon condition that no title shall pass till payment, do not hold the relation of bailor and bailee simply; and the payment by a trespasser of a judgment recovered against him by the vendee, for damages for taking and converting the chattel, does not bar or affect a second action by the vendor for its value, when his right to possession reverts by non-payment of the price. *
    The plaintiff being the owner of a certain horse on the 22d of January, 1851, made an agreement with one Yandermark to sell said horse to him for the sum of $65, which sum, with interest, he was to pay on the first of November following. If he paid for the horse that sum, at that time, the horse was to belong to him; but until such payment was fully made the horse was to remain and continue the property of the plaintiff. Yandermark was to have the possession of the horse until the first day of November, but if he had not by that time paid for it, the plaintiff was authorized to resume the possession of it. The defendant recovered a judgment against Yandermark,'and issued an execution thereon, and by virtue thereof caused the. horse to be sold, in May, 1851, and with full knowledge of all the facts of the arrangement between Yandermark and the plaintiff, became the purchaser of the horse and took possession of it Yandermark thereupon sued the defendant in a Justice’s Court for taking said horse, claiming it was exempt from levy and sale on execution, and recovered judgment against him for the sum of sixty dollars, which the appellant paid. This was in September, 1851. Yandermark, not having paid the plaintiff the purchase money for said horse, on or before the said first day of November, the plaintiff demanded the horse of the defendant, who then had it in his possession, and on his refusal to deliver the same, this action was commenced in a Justice’s Court, and a recovery had against the defendant for the sum of $105. This judgment was reversed by the County Court, and, on appeal to the Supreme Court, that Court reversed the judgment of the County Court and affirmed that of the justice. • The appellant, by leave, appealed to this court.
    
      John H. Reynolds, for the appellant.
    
      Theodoric R. Westbrook, for the respondent.
   Davies, J.

It is impossible to distinguish this case from that of Herring v. Hoppock (15 N. Y., 409). The doctrine laid down in that case is decisive of the present. The arrangement there in all its essential features, was like that in this case. It was then held that wherever there is-a condition precedent attached to a contract of sale of personal property, and the condition is not waived by-an absolute and unconditional delivery, no title passes to the vendee until he performs .the condition or the holder waives it. In this case there was such a condition precedent, and the delivery of the horse to Vandermark was not absolute, and it follows that no title passed to him. . The sale, therefore, of the horse on the execution against Vandermark, and the purchase thereof by the appellant, transferred no title to the horse to him, for the reason that Vandermark had no such title as was subject to levy and sale on execution An absolute transfer by Vandermark to another having full knowledge of the character of his possession and of the arrangement with,the plaintiff, would have passed no title to the horse. At the extent, Vandermark’s assignee would have'Only acquired the rights which he had under the arrangement with the plaintiff, and if he did. not pay the price agreed on, on the day named, such assignee would have been bound to restore the possession of the horse to the plaintiff.

Heither did the appellant acquire' any title to the plaintiff’s horse by the recovery of the judgment against him by Vandermark, and his payment of that judgment. By the arrangement with the plaintiff, Vandermark was entitled to the use and possession of the horse, until the 1st of November, 1851. If the appellant'wrongfully disturbed that possession, and deprived Yandermark of such use,-unlawfully, he of course subjected himself to such damages as Yandermark sustained by reason of his wrongful acts. The recovery and-payment of such damages, in no way impaired or affected the plaintiff’s rights. The proceedings in that suit, were as to him res inter alios acta, and the circumstance that he was a witness on the trial, in no sense concluded him, by any determination made in the case, I see no reason for doubting the correctness of the judgment of the Supreme Court, and I am in favor of its affirmance with costs.

Marvin, J. Herring v. Hoppock (15 N. Y., 409), is an authority to show that the plaintiff, Hasbrouek, could maintain an action against the defendant after the first of November, Yandermark having failed to pay the price of the horse, but it is not authority to show that he could maintain the action at the time Yandermark sued Lounsbury. Hasbrouek, at that time, had no. right to the possession of the horse, and to maintain an action for conversion the plaintiff must have a general or special title, and must have the right to the immediate possession.

.What relation to the property did Yandermark sustain ? He had by his contract secured the absolute right to the possession and enjoyment of the horse until the 1st of November, and also the right of uniting the title with the possession, by paying the stipulated price. He had a special property in the horse, and this, I think, was sufficient to bring him within the provision of the exemption statute. (2 R. S., p. 367, § 23.) He owned the horse as a team, within the meaning of the statute. Hence, I think he had a cause of action against Lounsbury, not as a bailee of the horse, but as owner, needing it for a team, and his condition being such as the statute specifies. But suppose he had not been a householder, or had had another team, could he have maintained the action against Hasbrouek ? I suppose not. The judgment and execution would have been a complete bar as to him. He could, however, have maintained an action against a mere naked wrongdoer, upon his own interest and title. I apprehend, however, that he could not have maintained an action against Lounsbury upon the relation pimply of bailor and bailee, that is, simply upon the ground that he was the bailee of Hasbrouck. The execution would have been an answer to such action. I think no case can be found where a simple bailee of property has ever maintained an action against one who has taken the property from his possession on an execution against him. The judgment and execution would, in such a case, estop him, and the owner, the bailor, would be the only person who could maintain the action.

As I have already said, Yandermark’s action was well founded. It was sustainable upon the ground that he owned the horse as a team, and the statute forbade its sale on execution. What should have been the amount of his recovery is another question, which it is not necessary for us to consider in this case, though I may say that, in my opinion, he should only have recovered the value of his special property, which was first a right to the horse until the first of ¡November, and also a right to title absolute, on his paying $65. It is not . material in this case whether the verdict in that case was too large. But if it were material, how can we say that it was more than the value of Yandermark’s special property in the horse. The verdict was $60. In this action, commenced in December following, the verdict was $100. Yandermark, by his contract, had secured the right to the title on paying $65, and his interest in the horse may therefore have been $35, besides the value of the horse through the whole summer. But let us waive all this, and inquire as to.the relations between Hasbrouck and Yandermark. It is claimed that they were simply bailor and bailee, and that either of them could have maintained the action; I think I have shown that Hasbrouck could not maintain the action until after the first of ¡November, and not then, except upon a neglect to pay the stipulated price; and I have endeavored to show that Yandermark could not, as bailee, have maintained the action. In other words, if. he had simply been a bailee of the property he could not have maintained the action.

Did the relation of bailor and bailee exist between Hasbrouck and Vandermark ? The contract, in my opinion, established a relation between the parties quite different from that of bailor and bailee, or, in other words, there is an element in the case not to be found in that of bailor and bailee, to wit: a sale by Hasbrouck to Vandermark, condititionally.

The judgment of the'Supreme Court should be affirmed.

Denio, Ch. J., Wright and Selden, Js., concurred.

Balcom, J., (dissenting.)

The agreement between the plain- , tiff and Vandermark constituted the latter bailee of the horse at the time it was taken and converted by the defendant. Bailment is defined to be, “a delivery of a thing in trust for some special object or purpose, and upon a contract expressed or implied, to conform to the object or purpose of the trust.” (Story on Bailments, § 2.); Edwards says: “ The general rule seems to be, that the delivery of goods for use, keeping, or on some other trust, where the right of property in them does not pass, creates a bailment; the bailee it is true acquires a special property in them, sufficient to enable him to defend them against a stranger, but the right to a chose in'action remains hr the bailor.” (Edwards on Bailments, 34.)

The title to the horse was all the time in the' plaintiff; but Vandermark had possession of it under an agreement that he might use it, and become the owner of it by paying .the plaintiff a certain sum therefor by a specified time; which time had not arrived when the horse was taken and converted by the defendant, or when Vandermark brought his action. The bailment continued until Vandermark allowed the day to pass, he had for paying for the horse, without doing so.

The plaintiff could have sued the defendant for taking and converting the horse before, or at the time Vandermark brought his action. Judge Cowen says: “In general, where goods bailed, are converted by a stranger, either the bailor or bailee ■ may bring trover; but they cannot both have an action at the same time; and the one first bringing his action, determines the right of the other, who cannot then sue, and a recovery by one bars the other.” (1 Cowen Tr., 2d ed., 285; Smith v. James, 7 Cowen, 328; Greene v. Clarke, 2 Kern., 343.)

It seems to me’to be very plain that the recovery by Vandermark was a bar to the plaintiff’s action. The defendant was a stranger to the agreement, under which the plaintiff delivered the horse tp Vandermark; and it is not at all material that he undertook to justify the taking and conversion of the horse by virtue of an execution against Vandermark’s property, or that the latter recovered the value of the horse, on the ground tjiat it was exempt from levy and sale on execution, for the defendant had no more right to take and sell the horse on the execution, as"Vandermark’s property, than as the property of a third person; and the case is the same as it would have been, if the execution had been against the property of a stranger, who never had any interest in the horse. It is only when the defendant can successfully defend an action, brought by the 'bailee, that the bailor can sue notwithstanding the prior action by the bailee. When the bailee recovers, he holds the money recovered in trust for the bailor in lieu of the property.

Now as either the plaintiff or Vandermark had the right to sue the defendant for converting the borse, the judgment recovered by Vandermark was a bar to this action.

It would be very unjust to the defendant were the law otherwise ; for he "would be compelled to pay for the horse twice,. and be legally harassed with two actions, when he took and sold the horse in good faith, supposing it was the property of Vandermark, and liable to seizure on execution against his property. Fortunately for the defendant, the law does not dp him this wrong. For this reason, I am of the opinion the judgment of the Supreme Court should be reversed, and that of the County Court affirmed.

Emott and Rosekrans, Js., concurred in the conclusion arrived at by Balcom, J.

Judgment affirmed.  