
    Levi Fuller, as Receiver, etc., v. John Claflin et al.
    
    
      Supreme Court, General Term, Second Department,
    
      Filed February 11, 1889.)
    
    1. Partnership — Power of one member to dispose of partnership EFFECTS.
    It is well-settled that one member of a partnership may sell, hypothecate or otherwise dispose of the property, securities or effects of the firm.
    3. Contract—Consideration—What is.
    Any act which is for the benefit of one of the parties to a contract, and operates to the injury of the other party or parties, is a good and effectual consideration to uphold a sale.
    3. Sale—Bill of sale—When sufficient to pass title—Priority of right.
    One of the members of a copartnership firm, executed a bill of sale of goods, “ to arrive" in a certain vessel. The consideration of the bill was the postponement of certain claims held by the vendees against the copartnership. The goods were not on the vessel at the date of the bill, but were in the hands of agents or on their way thither. Subsequently to the execution of the bill of sale, the supercargo was directed to make the consignment to the vendees. Meld, that the title to the goods passed to the vendees, and they having given a valuable consideration for the bill of sale have priority of right over a receiver appointed subsequently. Pratt, J., dissenting.
    Submission _ of controversy upon facts agreed upon.
    _ The action is brought by plaintiff as receiver of the property of the firm of C. Brennan & Co., against the defendant for the value of certain goods received by them under a bill of sale executed by one Thomas K. Foster, a member of the firm of C. Brennan & Co., in the firm name. The bill of sale was executed before plaintiff’s appointment as receiver.
    
      Hess & Townsend, for pl’ff; S. F. Kneelcmd, for def’t.,
   Barnard, P. J.

—It is fully settled that one member of a partnership may sell, hypothecate or otherwise, dispose of the property, securities or other effects of the firm.

Thomas K. Foster, one of the members of the firm of C. Brennan & Co., consequently had the power to make the sale to H. B. Claflin & Co. The question in this case is reduced to the consideration of the fact whether or not the instrument, dated August 31, 1888, executed by Foster, was sufficient and adequate by its terms, to tránsfer to the vendees, the title to the property therein referred1 to.

Said agreement reads as follows :

New York, August 31, 1888.
For value received, we hereby sell and transfer to H. B. Claflin & Co., 150,000 cocoa nuts and ten tons of ivory nuts, to arrive in the schooner Mary 0. Decker, from San Bias,. u. s. c.
0. BRENNAN & 00.

Subsequently to the execution of the above contract, and in order to carry out the terms thereof, the super cargo of the schooner was directed by telegraph to have the consignment made out to H. B. Claflin & Co.

The consideration for the foregoing contract is ample and sufficient. C. Brennan & Co., were at the date thereof justly indebted to the defendant, H. B. Claflin & Co., and suits had been instituted for the recovery of said indebtedness.

It has been held, in this state, that any act which is for the benefit of one of the parties to a contract, and operates-to the injury of the other party or parties, is a good and effectual consideration to uphold a sale. Hart v. Young, 1 Lans., 417; Brittenstool v. Henry Michaels, 56 N.Y., 607.

It has been further held that the giving of a bill of sale of certain specific articles is a good consideration for the postponement of the enforcement of a claim. Audas et al., v. Nelson, 64 Barb., 362.

There remains but one more question to be considered in reference to this case, viz.: In reference to the delivery.of the subject-matter of the bill of sale. By a long line of decisions in this state, it is established that the delivery which, is one of the essentiál prerequisites to a valid sale, must be such as the article sought to be sold is by its nature susceptible of. Hayden v. Demets, 53 N. Y., 426; Wilkes v. Ferris, 5 Johnson, 335.

In the case under consideration, although the goods were-not on the schooner at the date of the bill of sale, still they were in the hands of agents or on their way thither, and the consignment of them to John Claflin & Co., in accordance with the telegraphic instructions to that effect, operated to make as perfect a delivery as the circumstances of the case in question allowed.

' Even admitting that the sale was not complete in all essentials, still John Claflin & Co., having given a valuable-consideration for the instrument in question, have priority of right over the receiver appointed subsequently, under the principals of law‘set forth in the phrase “ qui prior esl in tempore potior est injure.”

Judgment should be given for the defendant, with disbursements only according to the term of the submission..

Dykman, J., concurs.

Pratt, J.

(dissenting)—The phrase “Sold to arrive” inr mercantile contracts does not import an executed sale.

The sale is conditional, and in case the events take place "upon which its execution depends, the right of the vendee in case of non delivery of the goods is to recover damages therefor. He cannot maintain replevin. The title is in the vendor until the sale is completed in the same manner as other sales. Anderson v. Read, 106 N. Y., 333.

It follows, therefore, that the agreement of Brennan & . Co. did not transfer to Claflin a present title to the goods. That remained in the vendors, and upon the appointment of the receiver vested in him as the representative of the court, as did the other assets of the estate. After that time, the title of the goods could only be transferred by the receiver, or by order of the court.

It also appears that on August 30th, when the contract was made, there were no goods of Brennan & Co. on the ■schooner M. C. Decker. There was, therefore, at that ! time nothing which answered the description of the con- ¡ tract. Before the goods were placed on board they had 1 vested in the receiver. They were not at any time before ; the receivership set apart or specified, or in anyway appropriated to the fulfilment of the contract, all which was necessary to be done before the title could pass. Not till those steps were completed could any one tell which of the .goods were to go to the vendee.

The goods vested in the receiver before these things were done, and whatever was done by the agents of Brennan & Co. after that time, had no validity.

It follows that the goods were the property of the receiver, who must have judgment upon the agreed statement of facts for $3,724.65, and interest from October 16, 1888, and his disbursements in the action.  