
    Louis Siedenbach, App’lt, v. Julia A. Riley, as Administratrix, etc., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed December 11, 1888.)
    
    1. Personal property—Ownership of—Evidence.
    Evidence that T., who purchased certain rifles, was the agent of the republic of Honduras; that the business sign upon Ms office described him as such; that when he paid the vendor for the rifles in question he declared that he did it on behalf of said republic, and the fact that the contract for their purchase described him as a special commissioner of the republic of Honduras, and the vendor agreed thereby to sell to said republic—in the absence of satisfactory or conclusive evidence that T. purchased the rifles for himself as a private individual transaction—was sufficient to authorize • a jury to find that - the rifles were bought by T. for the government of Honduras, and that they were paid for witii its money, and that they actually belonged to it, although, they were in the nominal possession of T. when taken by the defendant’s intestate as sheriff under an attachment issued against T.
    2. Chattel mortgage—Validity of—Attaching creditor.
    As against an attaching creditor a chattel mortgage is absolutely void, unless it or a true copy thereof was filed in the proper office, or unless there was an immediate delivery of the property by the mortgagor to the mortgagee, followed by an actual and continued change of possession. A mere constructive possession will not answer the ■ requirements of the statute.
    3. Same—Pledge—When operative as against.
    A pledge of chattels cannot become operative against an attaching creditor of the pledgor, without delivery to the pledgee of the possession of the property.
    4. Same—Sale of chattel when void as to creditors.
    Under the provisions of the statute every sale, unless the same be accompanied by an immediate delivery and followed by an actual and continued change of possession of the thing sold, is presumed to be fraudulent and void as against creditors of the vendor, and shall be conclusive evidence of, fraud unless it shall be made to appear on the part of the persons claiming under the sale that the same was made in good faith and without any intent to defraud such creditors.
    
      •5. Evidence—Bes gestae—What admissible as part op.
    Statements made by T. at the time he paid the vendor for the rifles, that he made payment for the government of Honduras, was properly admitted in evidence. It was material to show who T. was, at the time, acting for, and was competent as part of the res gestm.
    
    6. New trial—Eppect op—Opinion op general term directing.
    On the first trial of this case a judgment was entered upon a verdict directed in favor of the defendant, which, upon appeal, was reversed. On appeal from the judgment entered upon a verdict found on the second trial, Held, that the opinion of the first trial did not bind anyone, not even the judge who wrote it. That every question of law raised in the court below, appearing in the record, could be considered as if the decision of the general term on the second appeal had been upon the first appeal.
    Appeal from a judgment of the supreme court, general term, second department, modifying, and, as modified, affirming a judgment entered on a verdict in favor of defendant in an action to replevin certain goods taken under a judgment.
    On the 13th day of February, 1819, Boderiego Toledo held some kind of agency for the government of Honduras, and on that day .he entered into a contract with one Farington, in which he is described as “E. Toledo, Esq., special commissioner of the republic of Honduras,” whereby Farington agreed tó sell to the government of Honduras 6,000 rifiles, .with the spare parts furnished therewith, for the sum of $6.06 each; and Toledo agreed on his own behalf, and on behalf of the government of Honduras, to pay for the rifles on delivery. In pursuance of that contract Farrington delivered to Toledo 2,500 rifles, and the spare .parts- belonging thereto, then stored in the United States government ordinance building at the Brooklyn navy yard, and Toledo paid therefor, and left 1,000 of them and the spare parts at that place. The plaintiff claims that some time prior to July, 1819, he loaned $11,000 to Toledo, and took as security therefor a quantity of jewelry; that he held the jewelry as security for the loan until July 21, 1819, when Toledo paid $12,000 on the loan under an agreement by which he was to receive from the plaintiff the jewelry, and substitute therefor as security for the balance of the loan the 1,000 rifles, and spare parts, remaining at the navy yard, and that to carry out that agreement the following instrument was executed between the parties on that day: “In consideration of one dollar to me in hand, paid by Louis Siedenbach, Esq., I hereby sell, assign, transfer all my right, title and interest in 1,000 Bemington standard rifles, cal. 50, Springfield pattern, now deposited in the navy Yard of the United States, at Brooklyn, to the said Louis Siedenbach, with the condition that I or the parties representing me shall have the right to purchase the same at any time within three months from date, for the sum of $7,272.37.”
    Toledo, immediately after the execution of that instrument,- left this country, and Farington, claiming that he owed him a large sum of money for breach of contract, in December, 1879, commenced an action against him, and procured an attachment which was levied by the defendant’s intestate, as sheriff of Kings county, upon the 1,000 rifles and spare parts, and by virtue of the attachment, the sheriff took and held the property. Thereafter the plaintiff commenced this- action, to recover the possession of the property.
    The complaint does not allege a wrongful taking of the property by the sheriff, or that he had become wrongfully possessed thereof, but simply alleges that he wrongfully detained the property from the plaintiff, and that its value was $7,500, and judgment is demanded that the defendant deliver the property to the plaintiff and pay him damages for the detention thereof. In his answer the defendant denies that he wrongfully detained the property described in the complaint, and avers that he had “no knowledge or information sufficient to form a belief that the said goods and chattels, or any part thereof, were or are the property of the plaintiff.” And further answering, he alleged the action arising upon contract to recover $6; 000 of Toledo,, the issuing of the attachment, the receipt of the same by him, that by virtue thereof he levied upon and attached the rifles,- and that they at the time were the property of Toledo, or that Toledo had a leviable or attachable interest therein; and judgment is demanded for the return to him of the goods, and if return could not be had, then for the value thereof. The action was twice tried. Upon the first trial, at the close of all the evidence, a verdict was directed in favor of the defendant, and upon appeal by the plaintiff to the general term, the judgment entered thereon was reversed. 36 Hun, 211.
    Upon the second trial the cause was submitted to the jury, and they found a verdict in favor of the defendant^ and the judgment entered thereon, upon appeal to the general term, has been affirmed.
    
      Albert Cardozo, Jr., for app’lt; Thos. E. Pearsall, for resp’t.
    
      
       Affirming 6 N. Y. State Rep., 104.
    
   Earl, J.

The plaintiff’s counsel makes the singular claim that the decision rendered by the general term upon the first appeal was res adjudícala between the parties, and was therefore binding and conclusive upon them in all the subsequent litigation, even in this court. That decision did not result in any judgment, and all that was decided thereby was that the verdict ought not to have been" directed, and that the case should have been submitted to the jury. What was said in the opinion, did not bind any one, not even the judge who wrote it. Every question of law raised in the court below appearing in the record can therefore be considered here as if the decision of the general term; which is now under review, had been tendered upon a first appeal.

Under the issue in this case it was competent for the defendant to show that the plaintiff did not own the property in question. This action is in the complaint based solely upon the wrongful detention of the property claimed, and under the common law system of practice it would have been styled replevin in the detinet. In such a case a general denial puts in issue as well plaintiff’s title to the property as the wrongful detention, and the defendant under such an answer may show title in a stranger, although he does not connect himself with such title. Griffin v. Long Island R. R. Co., 101 N. Y., 348 ; 1 N. Y. State Rep., 56. It was, therefore, competent for the defendant, upon the trial of this action, to show that the property, on the 21st of July, 1879, did not belong to Toledo, but to the government of Honduras, and that, therefore, the plaintiff did not get any title thereto by virtue of the bill of sale executed to him by Toledo on that day. We think there was evidence in the case sufficient to authorize the jury to find that the rifles were bought of Farington by Toledo for the government of .Honduras ; that they were paid for with its money, and that they actually belonged to it. The evidence that Toledo was the agent of Honduras; that the business sign upon his office described him as such, and that when he paid Farington for the rifles, he declared that he did it on behalf of Honduras ; and the language of the contract with Farington; and some other facts in the case, in thé absence of satisfactory, much less conclusive evidence, that he purchased the rifles for himself as a private individual transaction, furnished some grounds from which it could be legitimately inferred that the rifles, after they were purchased, did not belong to Toledo. It is true that he bound himself in the contract with Farington as well as Honduras to pay for the rifles; but his obligation may have been, in fact, that of a mere surety. We do not deem it important to criticize the evidence in detail. It has all been considered.

Even if the rifles were purchased for and belonged to Toledo, there is evidence tending to show that the bill of" sale, notwithstanding its form, was intended as a mortgage ; that the plaintiff previously held, as security for his. loan, the jewelry, and that the rifles were substituted in the place of the jewelry as security for the balance of the loan.

As against an attaching creditor, this mortgage was absolutely void, unless it or a true copy thereof was filed in ' the proper office, or unless there was an immediate delivery of the property by Toledo to the plaintiff, followed by an actual and continued change o£ possession. Laws of 1833, chap. 279, § 1; Camp v. Camp, 2 Hill, 628; Bullis v. Montgomery, 50 N. Y., 352; Yenni v. McNamee, 45 id., 614; Porter v. Parmley, 52 id., 185; Steele v. Benham, 84 id., 634. A mere constructive possession will not answer the requirements of the statute. This instrument was not filed as a chattel mortgage, and whether the property was actually delivered and there was an actual and continued change in its possession prior to the attachment, were questions of fact for the jury. We do not deem it important now to call particular attention to the evidence. It has all been carefully read and considered, and we cannot say that taking into account the character, position and appearance of the witnesses, the facts and circumstances proved that the jury could not properly find that the property never actually went into the possession of the plaintiff prior to the attachment.

But if this paper was intended as a pledge of the property there is a .similar infirmity in plaintiff’s position, as a pledge could not become operative without delivery to the pledgee of the possession of the property, and here the jury may have found that possession was not delivery.

A similar infirmity attaches to the plaintiff’s case if the instrument executed on the 21st of July, 1879, he regarded simply as a bill of sale. Because it is provided in the statute that every sale, unless the same- be accompanied by an immediate delivery and followed by an. actual and continued change of possession of the thing sold shall be presumed to be fraudulent and void as against creditors of the vendor, and shall be conclusive evidence of fraud, unless it shall be made to appear on the part of the persons claiming under the sale that the same was made in good faith and without any intention to defraud such creditors. 2 R. S. 136. Here, as we have before stated, the jury were authorized to find that this sale was not accompanied by an immediate delivery and followed by an actual and continued change of possession of the property sold.

And hence the presumption that it was fraudulent and void as against creditors was conclusive unless the plaintiff made it to appear that the sale was made in good faith and without any intent to defraud creditors. The burden was upon him to make this appear, and we are of opinion that there was evidence from which the jury could find that the plaintiff had failed to show that the sale was in good faith and without any intent to defraud. We do not deem it important to detail the evidence; but we are satisfied that there was some evidence to be submitted to the jury upon this question of fraud. The disappearance of Toledo from the country immediately after the pretended sale leaving outstanding obligations, the confused and contradictory statements óf the plaintiff as to his purchase, the absence of proper entries in reference thereto upon any books, the subsequent treatment of the rifles by the plaintiff, the unexplained disappearance of them after they were replevied by the plaintiff and his apparent indifference in reference thereto, and other facts and circumstances were all to be weighed and considered by the jury and receive their proper significance.

The bill of sale to the plaintiff did not in terms cover the spare parts for. the rifles. The sheriff attached the spare parts with the rifles, and the plaintiff in his complaint, claimed both the rifles and the spare parts, and replevied both. The defendant in his answer did not specifically allege that he had attached the spare parts or that he claimed them, under his attachment. But he alleged that the property he attached was the same mentioned and claimed in the complaint and thus the spare parts were treated as really parts of the rifles. It is now contended on behalf of the plaintiff that the defendant could not recover under his answer on account of the spare parts. It is sufficient to say of this that no such objection was made at the trial. Ro defect in the answer was there pointed out and it was assumed to be sufficient. The spare parts were in fact attached by the sheriff and they were taken from him under the claim in this action, and hence he could recover on their account.

Immediately after the case was opened to the jury, it is stated in the case as follows: “ It is admitted that the present value of the guns and spare parts in question is ,$6,000.” It is not stated by whom this admission was made, nor for whose benefit, and the admission in terms related to the value at the time of the trial nearly four years after the property had been taken from the defendant. Afterward, the plaintiff having given no evidence as to the value of the property, the defendant asked one of his witnesses what the spare parts were worth. To this plaintiff’s counsel objected, saying that he understood they had agreed upon the value of the property. To this, defendant’s counsel replied, as we interpret it, that they had agreed upon the value of all the property for which plaintiff had a bill of sale, and the judge overruled the objection saying* that if the spare parts were taken on the writ of replevin, the defendant could show their value: and the witness answered that the spare parts were worth $1,500. In his charge to the jury the judge stated that it was agreed between counsel that the value of the rifles was $6,000, and that the only testimony as to the value of the spare parts was, that they were worth $1,500, and no objection to or criticism of these statements' was made by plaintiff’s counsel, and they were assumed to be true. The jury estimated the value of the rifles and spare parts at $6,750, the value alleged in the complaint being $7,500. Plaintiff’s counsel now complains that the defendant was not held to the value admitted at the commencement of the trial, and that he was permitted to prove the value of the spare parts. It is a fair inference from what took place upon the trial, that defendant’s counsel and the court understood that the admission related to the rifles alone, and the statements of the judge in reference thereto in his charge were acquiesced in, and hence the plaintiff cannot now complain of the evidence in reference to the value of the. spare parts, or the amount of defendant’s recovery.

There was no error in allowing the defendant to prove the statement made by Toledo at the time he paid Paring-ton for the rifles, that he made payment for the government of Honduras. That was material to show who Toledo was at the time acting for and was competent as part of the res gestee.

No other exceptions need particular notice. We think the judgment should be affirmed with costs.

All concur.  