
    Rhodes v. Mooney.
    
      Sale — Agreement to pay for goods on delivery — Bight of vendor to recover while retaining possession — Estoppel of creditor voting at election for trustee in insolvency.
    
    1. A. sold to B. 100 tons of iron at a specified price, to be paid in cash on delivery of C.’s warehouse receipt. The receipt of C. stipulated that he was to deliver the iron on return of such receipt. B. failing, on tender of the receipt to pay, A. brought suit against him for the contract price, alleging that he sold and delivered the iron to B., but A. has retained the receipt at all times.
    2. After verdict in favor of A. for the contract price, B. made an assignment ^ of all his property to D., for the benefit of creditors, and the creditors of B. met and unanimously selected E. as trustee in the matter of the assignment, eighteen creditors being present, and A. representing less than one-third of the debts, voting as an unsecured creditor. ■
    3. Judgment was subsequently rendered oh the verdict, and thereupon D. demanded the iron of C. On refusal, D. brought suit against C. for damages as upon á conversion of the iron. Held: That there was no estoppel by reason of the fact that A. voted as an unsecured creditor for such trustee; and that, the purchase money not having been paid or tendered, the custody of the iron not having been changed, and the receipt not having been produced to C., the lien of A. was effectual, and D. was not entitled to recover.
    Error to the District Court of Cuyahoga county.
    
      January 10, 1880, the Jackson Iron Company, by writing, said to E. K. Chamberlain, that.the company “ will sell you one hundred (100) tons of No. 1, Stewart Bessemer iron, delivered in the yard of Rhodes & Co., 2240 lbs. per gross ton at $46 50, cash down, on delivery to you of Rhodes & Co.’s warehouse receipt, Rhodes & Co.’s dockage charges to be paid by you. This offer is open for acceptance until Monday noon, Jan. 12, 1880.”
    Chamberlain proposed the following modification of the proposition: “ The above iron is not to be delivered to me until after the 1st of February, at the rate of about two cars per day, and with this provision in, accept the above.”
    This modification received the assent of the company January 12, 1880, and the contract was then complete.
    The iron was deposited with Rhodes & Co., and that firm issued to the company the following warehouse receipt:
    “ Office of Rhodes & Co.,
    Cleveland, Ohio, Feb. 20, 1880.
    Received into yard, No. 127 West River street, from Jackson Iron Company, shipped on board the--, on bill of lading dated -, for account of Jackson Iron Company, 100 Gro. tons (of 2,240 lbs. each) Stewart pig iron, which we hold subject to the order of Jackson Iron Company, upon the payment of our charges and the surrender of this certificate properly indorsed. No. 48.
    Rhodes & Co.”
    The Jackson Iron Company immediately thereafter tendered the receipt properly indorsed, and demanded the amount due, but no part of it has been paid, and the Jackson Iron Company has at all times retained the receipt.
    Failing to receive the amount for which the iron was sold, or any part of it, the Jackson Iron Company, on May 80, 1880, brought suit in the circuit court of the United States for the northern district of Ohio, against Chamberlain, on the contract, seeking therein to recover the contract price of the iron, and alleging that, “in pursuance of the contract, it delivered to said defendant, in yard of Rhodes & Co., one hundred tons of No. 1, Stewart Bessemer iron, and tendered to said defendant the warehouse receipt of Rhodes & Co. for the same.” The petition contains the further allegation that the purchase money, $4,650, remains unpaid, and there is a prayer for judgment for the amount, with interest from February 20, 1880.
    In the answer of Chamberlain to that action, non-payment of the purchase-money is substantially admitted, matter was set up, which was claimed to be a defense, in which is alleged failure to deliver at the time stipulated, and in connection with such matter, these averments were made:
    “ That said writing from Rhodes & Co., to said Jackson Iron Company, mentioned above, and which is called a warehouse receipt, and without which defendant could not obtain possession or control of said iron, was never received by defendant, or in his possession or control, but the same always has, and still does remain in the exclusive possession and control of the plaintiff, said defendant never having even seen the same.
    “ That said iron or any part thereof was never received by the defendant, and the defendant has never even seen the same, and the said plaintiff'has always and still does retain the exclusive possession and control of the same.”
    The cause was tried in the circuit court, which commenced on the 5th of October, 1880, and there was a verdict in favor of the Jackson Iron Company, and against Chamberlain, upou which judgment was rendered January 4, 1881, for $4,896.73, and costs.
    October 22, 1880, Chamberlain made an assignment to John B. Mooney of all his property for the benefit of his creditors. On December 16,1880, eighteen of the creditors of Chamberlain, including the representative of the Jackson Iron Company, met at the office of the probate judge, in Cleveland, and.elected J. A. Smith trustee in the matter of such assignment. The amount of the claims of creditors so acting was $18,682.34, and the claim of the Jackson Iron Company was stated at $4,800. All the creditors voted for Smith as trustee.
    Rhodes & Co. refusing to deliver to Mooney, as such assignee, such iro,n, without production of the warehouse receipt, and the Jackson Iron Company, refusing to surrender the receipt, the purchase-money remaining unpaid’, Mooney, as such assignee, after demand of and refusal by Rhodes & Co., commenced in the court of common pleas of Cuyahoga couuty, against Rhodes & Co., an action to recover possession of the iron by replevin, but Mooney being unable to give the undertaking required by law, the iron was returned to Rhodes & Co. The Revised Statutes (§ 5827) provide: “ When the property claimed is • • - is returned to the defendant by the sheriff for want of the undertaking required by section 5819, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as are right and proper.”
    In the answer and reply, all the facts herein mentioned are restated. The cause was tried to a jury on February 15, 1882, and the court charged the jury, in substance, that by the recovery of the judgment in the circuit court, the Jackson Iron Company, and consequently Rhodes & Co., lost the lien upon the iron, although no part of the purchase price was paid. Under such instruction, the jury returned a verdict, in which they say they “ do find the right of property and possession of the property described in the petition, was, at the commencement of this action, in' the plaintiff, and assess his damages at $2,984.86.” Judgment having been rendered on the verdict, and that judgment having been affirmed in the district court, this petition in error was filled in this court to reverse those •judgments.
    
      F. J. Wing, for plaintiff in error.
    
      V. P. Kline, J. A. Smith and Arnold Green, for defendants in error.
   McIlvaine, O. J.

On an agreement for the sale of goods to be paid for on delivery, when payment on tender of goods is refused, the vendor can not be deprived of the right of possession against his consent, until payment is made or tendered. Perhaps no one will dispute this proposition.

After tender of the goods and refusal to pay, the vendor may bring his action against the vende.e, and recover the contract price, although the right of possession stiil remains in him.

Granting that the election of the vendor to sue the vendee on the contract for the purchase price, vests in the vendee the right of property, it is nevertheless true, under the 'contract, that the right of possession remains in the vendor in the nature of a pledge to secure the payment of the purchase money, and after judgment, the goods may be seized in execution, as the property of the vendee. I can see no objection to such proceeding by execution at law. J3ut, at all events, if interests be subsequently acquired in the property from the vendee, which would preclude the seizure of the property in the hands of the vendor, as the property of the vendee, it is beyond doubt that equity would take hold of the property, and apply it to the payment of the purchase-money.

Whether the right of the vendor to have the goods sold and remaining in his possession applied to the payment of the purchase-money be at law or in equity, I am satisfied that the right of possession for the purpose of security can not be taken away without his consent.

Beyond doubt, in this case, the vendor, the Jackson Iron Company, did not deliver the goods to the purchaser, Chamberlain. It is true, he tendered the warehouse receipt, according to contract* and demanded payment. Payment being refused, the vendor retained the receipt. The goods were held by Rhodes & Co., warehouse-men, as bailees of the vendor. This relation was not changed.

It is conceded that the Jackson Iron Company recovered a judgment against Chamberlain for the full contract price. After judgment, Chamberlain assigned for the benefit of creditors to Mooney, the plaintiff in the original action, who brought this suit against Rhodes & Co., the bailees of the Jackson Iron Company, for the recovery of the goods. The question in the case was, whether Mooney, as assignee of Chamberlain, or Rhodes & Co., as bailees of the Jackson Iron Company, were entitled to the possession of the goods.

The case below turned upon a single fact. The Jackson Iron Company, in its action against Chamberlain for the purchase price, averred in its petition that the goods had been sold and delivered,. It would undoubtedly have been sufficient to have averred that the goods had been sold and tendered, but, inasmuch as payment was refused by Chamberlain, the possession of the goods had been retained by the plaintiff, who was ready and willing to deliver, upon payment of the price.

In this case, I admit the averment of delivery, in the petition in the former case, was entitled to weight as an admission of the vendor that there had been an actual delivery to the plaintiff’s assignor. But I deny that admission was conclusive between the parties to this suit. Beyond all question it was untrue. I can find no element of estoppel in the admission as against the defendants in this case. Neither the plaintiff nor his assignor was misled by the averment.

On the trial below the case was tried on the theory that in an action by a vendor for full purchase pi’ice, an averment of the delivery of goods is conclusive, and that the subsequent retention of the goods by the vendor as security for the purchase-money is wrongful, although by the contract of sale such retention is stipulated for. In this there was error, for which the judgment below should be reversed.

Judgments reversed, and cause remanded to the court of common pleas for a new trial.  