
    Jacob Balz, Respondent, v. Daniel M. Shaw, Appellant.
    (City Court of New York—General Term,
    March, 1895.)
    Plaintiff sold a piano co a married woman and took back from her a chattel mortgage which contained a condition that if she did not keep and retain the piano for her own use on the premises the whole principal sum should become due, but such mortgage was not filed. At the same time plaintiff executed an instrument in writing acknowledging the receipt from the woman’s husband cf a specified sum by note “ on account of piano.” About four days thereafter defendant made a loan to said husband on said piano and other furniture and took a chattel mortgage thereon, relying on said receipt, and subsequently removed the piano. Held, that plaintiff’s mortgage, though not filed, was valid as between him and the mortgagor; that he was entitled to immediate possession of the piano because of the breach of condition, and that the giving of the receipt did not estop him from denying the title of her husband to the piano.
    Appeal by defendant from judgment for plaintifi on verdict and from order denying new trial.
    
      J. P. SelmcKmam,, for respondent.
    
      Jas. M. Fisk, for appellant.
   Van Wyck, J.

The action is for damages for the conversion of a piano, and plaintifi’s proof is that he was a dealer in pianos and had, on December 23,1893, sold and delivered the one in question to Mrs. Joseph Schwarz at Ho. 244 West Fifty-second street, this city, for the sum of $450, of which $10 cash was paid and he took back from her on that day a chattel mortgage on the piano to secure the payment of $440, the balance on the purchase price, which is still unpaid, and which contained, among others, a provision that if she did not keep and retain the piano for her own use on said premises “ the whole principal sum with interest shall become due and this sale absolute; ” that this mortgage had not been filed in the register’s office; that before commencement of this action the piano was in the possession of the defendant, who claimed it under a chattel mortgage thereon made to him by' Mr. Joseph Schwarz, and it was then on storage in the ware-rooms of one Morse, an auctioneer and furniture dealer. Although plaintiff’s mortgage had not been filed as required by law, still it was valid as between him and Mrs. Joseph Schwarz, the mortgagor, and he was entitled to the immediate possession because of her breach, among others, of the condition and provision as to keeping and retaining the piano for her own use on the designated premises; hence the motion to nonsuit him was properly denied. The defendant’s proof shows that oh January 2, 1894, Mr. Joseph Schwarz called at his office and requested a loan of $550, to be secured by chattel mortgage, and stated that he had a house full of furniture at 244 West Fifty-second street, all of which he had brought from Chicago, except the piano, which he had bought in Hew York, and exhibited to him a receipt signed by plaintiff, which will hereafter be considered ; that thereupon plaintiff caused an inspection to be made of this furniture and piano at this house, and a search to be made in the register’s office for chattel mortgages ' against Mr. Joseph Schwarz ; that being satisfied as to value and that no such mortgage was filed, and relying on the receipt signed by plaintiff and on the affidavit of his mortgagor that he was absolute owner of the furniture and piano, which was free of all liens, he, defendant, lent Joseph Schwarz $550, taking his two promissory notes of $275 each, dated January 4, 1894, one at two and the other at four months after date, and at the same time taking a chattel mortgage from him on this furniture and piano to secure the payment thereof, which mortgage was filed in the register’s office on the same day.

Both plaintiff and defendant assume that Mr. and Mrs. Joseph Schwarz were a pair of swindlers, thén residing at- 244 West Fifty-second street as husband and wife, but each claims he is entitled to the piano as against the other. It is beyond question that the title to the piano passed in the ’first instance from the plaintiff to the woman, and that she gave-him back a mortgage thereon to secure payment of the purchase price ; that he neglected to file the same, and that his claim to the right of possession is made thereunder. There is no proof whatever that the woman ever transferred her ownership, right to possession or possession of the piano to the man, except that defendant says, “I saw her once at the house when I went to look at the goods,” but does not give a single word that she spoke, or that he or the man spoke in her presence. This slight evidence tending to show title in the man by estoppel against the woman was the testimony of a party, hence carried the question of such title to the jury. The presence, of her piano in the house in which they lived as husband and wife is no evidence of either the ownership or possession thereof by the husband, and moreover the possession of a chattel, if there he no other evidence of property or authority to sell from the true owner, will not enable the possessor to give good title. Covill v. Hill, 4 Den. 323.

How, as to the paper signed by plaintiff, which was exhibited to defendant by the man when he requested the loan, and which is as follows :

“ $440. Hew Yobk, Decemb&r 29, 1895.
“ Deceived of Mr. J. Schwarz four hundred and forty (by note) dollars on account of piano.
“ (Signed), Jacob Balz.”

How the inquiry is 'whether the plaintiff did by this writing confer upon Joseph Schwarz such an apparent title to or power of disposition over the piano in question as will now estop him from denying title in Schwarz when he transferred the same by mortgage to the defendant, taking in good faith and for value. This receipt is not a bill of sale, nor does it purport to convey title, nor is it evidence of a right to sell, nor does it give external indicia of the right of disposing of the same. It is simply an acknowledgment that Schwarz personally handed plaintiff a promissory note on account of a piano, but it does not indicate to whom the piano was sold or by whom the note was made, and, if it evidences a sale to any one, it does not indicate whether it is absolute and conveying immediate title or conditional upon the payment of the note. It does seem that this very receipt-should have put defendant upon inquiry the moment he saw it, and especially as it is dated only four days before it was shown to -him. The defendant’s motion to dismiss on the. merits of the -case was properly denied, and the case was submitted to the jury by a charge certainly as favorable to the defendant as he could expect and to which he took no exception, and his only request was charged. The case is a very hard one for the defendant, hut the jury have found that the person under whom he claims had no title, nor had the plaintiff armed him with “ any symbol of property,” and as both plaintiff and defendant are innocent, the jury saw no reason why the former should be a sufferer rather than the latter.

Judgment and order affirmed, with costs.

Ehrlich, Ch. J., and Newburger, J., concur.

Judgment and order affirmed, with costs.  