
    Alfred H. Smith et al., App’lts, v. Henry Clews, Impleaded, etc. Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 23, 1889.)
    
    1. Sale—Bona fide purchaser—What words do not import authority to sell—Paroi evidence, when admissible to explain meaning.
    The plaintiffs were dealers in diamonds. One P., a diamond broker, introduced to them one M., telling them that M. might be able to sell a pair of earrings to defendant should he see a pair that suited. M. selected a pair, which, on the following day, were delivered to him by P., who delivered them to M., and took the following receipt from him: “Received from Alfred H. Smith & Co., by their representative, B. W. Plumb, a pair of single stone diamond ear-knobs, * * of the value of $1,400, ■ on approval/ to show to my customers, said knobs to be returned * * * on demand. Signed, E. Miers.” M. soon after so'd the stones to defendant for $1,100. Plaintiff demanded the diamonds, and this action was brought to recover them. Held, that on its face the contract does not import an authority to sell; that the words “on approval,” as ordinarily interpreted, are neither inconsistent with an authority “to show” or an obligation “to return on demand,” and that the court erred in excluding paroi evidence offered as to the intent of the parties to the contract.
    2. Same—When owner estopped from asserting- title.
    The rightful owner may be estopped by his own acts from asserting his title. If he has invested another with the usual evidence of title, or an apparent authority to dispose of it, he will not be allowed to make claim against an innocent purchaser dealing on the faith of such apparent ownership.
    3. Same—Mere possession confers no power of sale.
    But mere possession has never been held to confer power to sell, and an unauthorized sale, although for a valuable consideration, and to one having no notice that another is the true owner, vests no higher title in the vendee than was possessed by his vendor.
    Appeal from judgment of the supreme court, general term, first department, affirming a judgment dismissing the plaintiff’s complaint.
    
      Esek Cowen, for appl’ts; Albert A. Abbott, for resp’t.
    
      
      Reversing 15 N. Y. State Rep., 6.
    
   Brown, J.

This action was brought to recover the possession of two diamonds, with their settings, constituting, what is called in the evidence, a pair of diamond ear knobs.

The plaintiffs are dealers in diamonds, having their place of business at No. 14 John street, in Few York city.

On the 11th day of April, 1879, Borden W. Plumb, who was a diamond broker, introduced to Mr. Alfred H. Smith, one of the plaintiffs, one Elijah 'Miers, telling Smith that Miers thought that if he saw a pair of ear knobs that suited him, he could sell them to Mr. Clews, and that he had brought him to the plaintiff’s store that he might see the assortment. Miers selected a pair that he said he thought would suit Mr. Clews,_ and it was then arranged that Smith should send them to him on the following day by Mr. Plumb.

Miers had, on two previous occasions, sold stones to Mr. Clews. On the first occasion he sold a pair for three hundred dollars, which, proving unsatisfactory, were returned, and another pair substituted in their place, of the value of four hundred and fifty dollars.

On the day following the conversation at the store, the diamonds were delivered to Plumb, who delivered them to Miers, taking from him at the time of the delivery, a receipt, of which the following is a copy:

“ New York, April 12, 1879,

“Received from Alfred H. Smith & Co., by their representative, B. W. Plumb, a pair of single stone diamond ear knobs, 10 1-8 carats, of the value of fourteen hundred dollars, “ on approval,” to show to my customers. Said, knobs to be returned to said A. H. Smith & Co. on demand.

(Signed) “ E. MIERS.”

Miers soon after sold the diamonds to Clews for eleven hundred dollars, taking back in part payment the second pair that he had sold him for four hundred and fifty dollars, and receiving credit on Clews’ books for six hundred and fifty dollars, of which five hundred and fifty dollars was afterwards paid out by Clews for Miers’ account, but fan what purpose does not clearly appear from the evidence.

Plaintiffs demanded the diamonds from Miers and from Clews, and this action was brought to recover their possession.

The case has been twice tried. On the first trial the plaintiffs had judgment, which was reversed in this court. 105 N. Y., 286; 7 N. Y. State Rep., 350. On the second trial the complaint was dismissed, and the general term having affirmed the judgment entered on such dismissal, plaintiffs appealed to this court.

After proving substantially the facts I have stated, the plaintiffs called as a witness Chester Billings, who having testified that he had been an importer and dealer in diamonds in the city of New York for thirty-six years, was asked whether there was a peculiar meaning given- in the diamond trade to the words ‘ ( on approval. ” This question was excluded on defendants’ objection, and plaintiffs excepted. Plaintiffs then offered to prove by Billings and other witnesses that the words “on approval” mentioned in the receipt had a recognized meaning in the diamond trade, and were understood not to confer a power to sell, but authority merely to show diamonds to a customer and report to the owner, and that this meaning was well known to plaintiffs and to Plumb and Miers. This evidence was excluded on defendants’ objection, to which plaintiffs excepted.

Evidence is always admissible to explain the meaning of terms used in any particular trade, when their meaning is material to construe the contract, and the rule extends to forms of expression as well as to single words.

Evidence of usage is also admissible to apply a written contract to the subject matter of the action, to explain expressions used in a particular sense by particular persons as to particular subjects, to give effect to language in a contract as it was understood by those who made it. Walls v. Bailey, 49 N. Y., 470; Silberman v. Clark, 96 id., 524; Boorman v. Johnston, 12 Wend., 573; Dana v. Fiedler, 12 N. Y., 46; Bissel v. Campbell, 54 id., 357; Hinton v. Locke, 5 Hill, 437. Newhall v. Appleton (22 N. Y. State Rep., 670) decided at this term of the court. Opinion by Parker, J.

The case shows that this evidence was excluded by the trial court because the plaintiffs did not bring it home to Mr. Clews.

Obviously, Clews’ knowledge of the custom had nothing to do with the question.

No man can be divested of his property without his own consent, and consequently, even an honest purchaser under a defective title cannot hold against the true owner. That “No one can transfer to another a better title than he has himself, is a maxim,” says Chancellor Kent, “alike of the common and the civil law, and a sale ex vi termini, imports nothing more than that the bona fide purchaser succeeds to the rights of the vendor.” 2 Kent’s Com., 324, and cases cited.

The rightful owner may be estopped by his own acts from asserting his title. If he has invested another with the usual evidence of title, or an apparent, authority to dispose of it, he will not be allowed to make claim against an innocent purchaser dealing on the faith of such apparent ownership. McNeil v. Tenth National Bank, 46 N. Y., 325.

But mere possession has never been held to confer a power to sell, and an unauthorized sale, although for a valuable consideration, and to one having no notice that another is the true owner, vests no higher title in the vendee than was possessed by his vendor. Covill v. Hill, 4 Denio, 323.

Clews’ title to the diamonds, therefore, depended wholly on Miers’ authority to sell, and he was bound by such limitation as the owner had placed upon Miers’ possession, and unless authority to sell existed, Clews, although acting in entire good faith, obtained no title to the stones. ■ It was, therefore, of no consequence whether or not Clews knew of the custom of the trade. The inquiry was, did Miers know of it, and had he contracted with reference to it.

The offer was to show that the term “on approval” had a well understood meaning in the diamond trade, and as Miers was a dealer and broker in diamonds, if it had appeared that the term had a well understood meaning in the diamond business, he might fairly be presumed to have been acquainted with the meaning of the expression, and to have contracted in reference to such meaning. But the offer went further, and proposed to show actual knowledge in Miers of the meaning of this term, and if such had been the fact, it would not have lain with him to have denied the well understood meaning of an expression used by himself, in the agreement by which he acquired possession of the property, nor could he escape the effect of the application of such meaning to the subject matter of the contract.

This evidence was, therefore, admissible, and the exclusion error for which there must be a new unless the contract between the parties expressed the power to sell, in language so well understood that there is no ambiguity, and no room under the rules of law for paroi testimony to aid in its interpretation.

On the former appeal of this case the court construed the contract in the light of the evidence then before it, to confer on Miefs a power of sale, and if the same evidence was now before us we should feel constrained to follow that decision.

It then appeared that plaintiffs, prior to the transaction in question, knew Miers to be a dealer in diamonds, and that the stones which, on two former occasions, he had sold to Clews, had been obtained from plaintiffs through Plumb, who was their agent.

The court empasized these facts, saying “ the plaintiffs were dealers in diamonds and they knew Miers, and that he was engaged in the business of a diamond dealer. They had, on two former occasions, intrusted, through their agent, diamonds to Miers, who bad sold them and accounted for the proceeds of the sale, without any fault being found, so far as appears, on account of any lack of authority to sell.”

Now, upon these facts, what other meaning can be attached to that receipt than that Miers had power to take these diamonds and show them to the customer, and, if approved of by the customer, sell them to him? It can mean nothing else than an authority to sell the stones to the customer if they met his approval.

These 'facts do not appear in the case presented to us. On the contrary, it appears that Miers was personally unknown to plaintiffs until introduced by Plumb on April eleventh, and there is not the slightest evidence to justify the inference that the other stones sold to Clews had been obtained from plaintiffs or from Plumb.

We have, therefore, no other dealings between the parties to aid us in interpreting the contract, and are confined to the single transaction out of which this action has grown.

Upon the face of the contract it does not import an authority to sell. If the words “On approval,” are stricken from the paper, it would appear to be a complete agreement, of plain meaning, in which the authority given is “to show” the diamonds, and the obligation is absolute “to return on demand.”

Such expressions are wholly inconsistent with an authority “to sell,” and its meaning could not be plainer if the parties had inserted after the words “ to show,” the words “but not to sell.”

The words “on approval” as ordinarily interpreted are neither inconsistent with an authority “to show” or an obligation “to return on demand.” We must, however, presume that the parties intended some meaning by. their use, and as the meaning does not appear from the context, we have a case where parole evidence is admissible to enlighten the court, and to show the intent of the parties to the contract. White v. Hoyt, 73 N. Y., 512.

It is unfortunate that the case should not now present the same facts that were before the court on the first appeal. Why it does not, we are not informed. But we cannot speculate as to what may be the real facts, and must confine our decision to the case now before us.

We think the court erred in excluding the evidence offered, and the judgment must be reversed and a new trial granted, with costs to abide the event.

All concur, except Follett, Ch. J., dissenting.  