
    Charles M. Lang, Respondent, v. John Boyd Thacher, Appellant.
    
      Complaint—when it does not join a cause of action for conversion with one for specific performance.
    
    The complaint in an action alleged that the plaintiff, as security for a loan, delivered to the defendant an absolute bill of sale of a collection of drawings, under an agreement by which the defendant was on request before a date named to resell the collection to him .upon payment of the loan and accrued interest; that the plaintiff had tendered the amount of the debt with interest and that the defendant had refused to surrender the collection. The relief demanded was that the plaintiff be permitted to redeem the property and that the defendant be required to deliver it to the plaintiff, and that, in case the court should determine that the plaintiff was not entitled- to redeem, "the defendant be required to specifically perform his agreement' to resell the property to the plaintiff, and to deliver it to him upon payment of the debt and interest, and that in the latter case the plaintiff be awarded §5,000 damages for witholding the same; that in the event of the defendant’s failure or inability to • make specific performance and delivery the plaintiff have judgment against the defendant for §25,000, the value of the property, and §5,000 for withholding the same, and that the defendant be enjoined" from selling or disposing of the property or injuring or concealing the same.
    To this complaint the defendant demurred.
    
      Held, that the complaint stated a single cause of action on contract in equity to obtain the actual delivery of specific chattels;
    That the complaint did not state a cause of action in tort for the conversion of the property and for damages for withholding it together with a cause of action to compel an actual delivery of the property upon the payment of a certain sum, but merely stated the different grounds upon which the plaintiff’s claim of ownership and right to the latter relief was predicated.
    
      Appeal by the defendant, John Boyd Thacher, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 20th day of November, 1899, upon the decision of the court rendered after a trial at the Greene Special Term overruling his demurrer to the complaint, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 20th day of November, 1899, overruling said demurrer. ,
    The allegations of the complaint are, in substance, as follows:
    On and prior to April 16, 1892, the plaintiff owned and was in possession of certain pen and pencil drawings and sketches, particularly described in certain pages attached to a bill of sale now in defendant’s possession, made April 16., 1892, by plaintiff to defendant.
    On or about April 16, 1892, the defendant loaned to the plaintiff the sum of $1,000, and thereupon the plaintiff, as collateral security for the payment of such loan and interest, executed and delivered to the defendant the bill of sale above referred to, and delivered to defendant the said drawings and sketches. Thereafter, and. before the commencement of this action, the defendant loaned to the plaintiff other sums of money amounting in the aggregate to about $500.
    On or about May 31, 1898, the defendant executed and delivered to plaintiff an instrument in writing of which the following is a copy:
    “ Agreement.
    “ I hereby agree to sell to Charles M. Lang, at his request in person to me,' at any time before May 31, 1899, a certain lot of pen and pencil drawings and sketches as per certain pages attached to a certain bill of sale, made April 16, 1892, and on that day bought of him, provided the said drawings and sketches are not destroyed or stolen, for the sum of nineteen hundred and seventy-eight dollars and fifty-four cents; all other agreements on my part to sell to said Lang are hereby cancelled by the consent of the said Lang.
    “Albany, N. Y., May 31, 1898.
    “JOHN BOYD THAOHER.
    “CHAS. M. LANG.”
    The sum of $1,978.54 stated in the agreement is the amount of the principal, with interest to May 31, 1899, of the moneys so loaned and advanced to plaintiff by defendant as above stated and still unpaid and owing by plaintiff to defendant. Prior to May 31, 1899, as well as subsequent thereto and before the commencement of this action on several-occasions, the plaintiff duly and personally tendered to defendant the said sum of $1,978.54, with interest thereon to date of tender in each case, and demanded personally, of defendant the delivery to him, the plaintiff, of said drawings and sketches, but the defendant refused to accept the moneys tendered and refused to deliver to plaintiff the drawings and sketches. The same have not been destroyed or stolen. The plaintiff is ready, able and willing to pay such sum and interest on receipt of the drawings and sketches.
    The plaintiff is, and has been for many years, by occupation án artist, and the said drawings and sketches are a part óf a collection made personally by him in Europe, and they are of great value as works of art, many being of considerable antiquity and the works of celebrated artists, and their acquisition by plaintiff involved the expenditure of a large amount of time and money and the exercise of special skill. They are unique and cannot be replaced by others of similar or equal value or merit. Very few such drawings can now be procured at all.
    These articles were deposited with defendant as a pledge and collateral to the repayment of the indebtedness from plaintiff to defendant. At the time of such .delivery and as a part of the same transaction, defendant executed and delivered to plaintiff an agreement substantially similar to the agreement hereinabove set forth except as to the limit of time therein expressed, and from time to time thereafter, in each case before the expiration of the time limit in the prior agreement, defendant replaced each agreement respectively with another of similar tenor except as to time limit, so that at all times since the deposit with defendant down to May 31, 1899, the plaintiff has had in his possession a written agreement from defendant for the redelivery, of said articles to plaintiff on repayment of a certain sum of money.
    These agreements, although in form for the sale of the articles, were in fact intended by the parties as agreements for their redemption and the bill of sale therein referred to was intended as a chattel mortgage or collateral security for the loans, and the defendant always so treated the agreements and bill of sale until recently, when he claimed and now claims that the plaintiff sold to him the articles absolutely and that the agreement of May 31, 1898, is merely an agreement to sell the property to the plaintiff.
    The defendant has wrongfully detained and still detains the said drawings and articles from plaintiff and is wrongfully endeavoring to deprive him of the same by refusing to accept the moneys ten-' dered and redelivering the property, and is wrongfully endeavoring to acquire and retain them for an inadequate ¡Drice, the same being of the reasonable value of at least $25,000, and if defendant is permitted to retain or dispose of the same the plaintiff will suffer irreparable loss and damage both by reason of the fact that plaintiff’s entire collection will thereby be broken up and the remainder diminished in value, but also by the fact that said drawings and sketches cannot be duplicated or replaced. The plaintiff has been damaged by the failure of defendant to deliver the same to him in the sum of at least $5,000 besides the value of the articles.
    The plaintiff demands judgment (1) that he may. be permitted to redeem the property and pay the defendant the said sum of $1,978,54 and interest, and that thereupon the defendant may be adjudged and required to deliver the property to the plaintiff; (2) that, in case the court shall determine that plaintiff is not entitled to redeem, the defendant be required to make specific performance of the agreement of May 31, 1898, and deliver to plaintiff the property on payment of the sum named and interest, and that in that case plaintiff recover from defendant $5,000 damages for withholding the same ; (3) that in ease of defendant’s failure or inability to make such specific performance and delivery the plaintiff have judgment against defendant for $25,000 damages, the value of the property, and $5,000 for withholding the same; (4) that the defendant be enjoined and restrained from in any manner selling or disposing of th® property or injuring or concealing the same, and for such other relief as may be just.
    The defendant demurred to the complaint upon the ground that it appears upon the face thereof that several causes of action have been improperly united ; one being to adjudge a certain instrument (which, upon its face, is an absolute bill of sale) to be a chattel mortgage and to allow the plaintiff to redeem the articles described therein ; the second being to compel the specific performance of an agreement in writing, executed by the plaintiff, in which the defendant agreed to sell to the plaintiff certain articles ; the third being to recover from the defendant in tort for the conversion of certain articles and for damages for the withholding of the same. ■
    
      John A. Delehanty, for the appellant.
    
      Martin T. Nachtmann and John De Witt Peltz, for the respondent.
   Merwin, J.:

According to the complaint the action is in equity to obtain the actual delivery of certain specific chattels. That such an action is maintainable in equity is well settled. (2 Story Eq. Juris. § 708 et seq) The right to obtain such delivery may be based on an equity of redemption, or on a right to a specific performance of an agreement of sale. (2 Story Eq. Juris. § 710; 1 Pom. Eq. Juris. § 164; 5 Am. & Eng. Ency. of Law [2d ed.], 1003.) In either case, the action for that purpose is based on contract.

The subject-matter of the present action is the specific articles, the actual delivery of which the plaintiff claims. The cause, of action is the equitable right, which the plaintiff claims to have, to enforce such actual delivery upon payment of a certain sum. Whether this sum shall be deemed to represent the amount of the indebtedness from plaintiff to defendant for which the property is held as security, or to represent the purchase price as upon an agreement to sell, the controversy is jiractically the same, involving the same continuous transactions over the same subject-matter, the legal title of which is in the defendant. . The equitable claim of ownership and right to actual delivery is but a single cause of action although relief may be given upon different grounds.

Clearly there is no misjoinder of causes of action unless, as claimed by the defendant, there is also stated in the complaint a cause of action in tort for the conversion of .the property and for damages for withholding the same.

It is very manifest that the main object of the action is to obtain actual delivery. This would not be accomplished by an action for conversion. The intention to set up a cause of action on that basis is not apparent. The demand for relief for the value of the property is in the contingency of inability to obtain actual delivery. The allegation in the complaint of wrongful detention may be construed as referring to the violation by defendant of his agreements. (Austin v. Rawdon, 44 N. Y. 63 ; Vilmar v. Schall, 61 id. 564.) The allegation that the plaintiff has been damaged by the failure of the defendant to deliver the property is evidently made in view of inci-. dental relief that may be granted in the equitable action, and does not operate to characterize the action as one. for conversion. A court of equity having obtained jurisdiction will give full relief according to the exigencies of the case. (Valentine v. Richardt, 126 N. Y. 272, 277.)

The complaint should not, I think, be construed as setting up a cause of action for conversion. It follows that the demurrer was properly overruled.

All concurred.

Judgment affirmed, with costs, with leave to defendant to answer upon payment of costs of appeal and of demurrer within twenty days from service of copy of this order.  