
    John A. Nowell & another vs. Alfred H. Pratt & another.
    The consignee of goods, for sale, does not lose the power to sell, by pledging diem for his own debt; and, if he afterwards sells and delivers the goods to a bond fide purchaser, and, the goods not being removed, the pledgee sells them and receives the proceeds, the latter is liable therefor, on demand, to the purchaser, in an ao tian of assumpsit.
    
      This was an action of assumpsit, to recover the proceeds of the sale of ten barrels of pork, tried before Bigelow, J., in the court of common pleas, and brought into this court by exceptions.
    It was in evidence, on the part of the plaintiffs, that on the 15th of October, 1847, a mercantile house in New York consigned two hundred and fifty barrels of mess pork to Charles D. Gibson, a commission merchant, in Boston ; that the consignee, having duly received the pork, put about fifty barrels of it into his own store, and, for want of sufficient store room, placed the remainder in the cellar of the defendants’ store; that on the 29th of October, Gibson reconsigned two hundred barrels of the pork to the defendants, and drew on them, for his own account, a draft of $2300 which was accepted by them, the pork being then in then cellar; that on the 17th of November, the plaintiffs purchased of Gibson, and paid for ten barrels of pork, which, the plaintiffs insisted, were a part of the pork in the defendants’ cellar, and which the defendants alleged were a part of the lot in Gibson’s store; that at the time of the purchase by the plaintiffs, there was no delivery, but that on the 25th or 26th of November, the plaintiffs sent their servant to the store of the consignee, with authority to receive a delivery; that Gibson told the servant that the pork was in the cellar of the defendants, and sent his clerk there with the servant, for the purpose of making a delivery of the same ; that one of the defendants, after making some excuses for being unwilling to deliver the pork, finally told the servant and clerk, that they might go into the cellar, and select the pork and hoist it up, and in the mean time he would go and see the plaintiffs ; that the servant and clerk thereupon went into the cellar, selected ten barrels of pork having hoops of a particular ldnd, which they entirely separated from the rest of the pork, by rolling it to the front of the cellar, and proceeded to hoist the same into the first story; that they had hoisted up about one half of it, when the said defendant returned, and forbade the removal of the pork, and refused to allow the plaintiffs or their servant to take the same away; that afterwards, and before the 20th of December, the defendants sold the ten barrels and received the proceeds of the sale; and that on the 21st of December, which was before the commencement of this action, the plaintiffs demanded the proceeds of the defendants, who refused to pay over the same.
    It further appeared, that there was a balance of cash in the hands of the defendants to a larger amount than the proceeds of the pork in question ; and that the defendants, prior to their refusal to permit the same to be taken from their store, had received notice from the plaintiffs and from Gibson, that the ten barrels had been purchased and paid for by the plaintiffs.
    It was also in evidence, that Gibson endeavored to conceal from purchasers the fact, that the defendants had made advances upon the two hundred barrels of pork in their possession ; that he represented it as only being stored in the defendants’ cellar; that he was in the habit of treating it as his own, and had sold and received payment for several lots of it, as his own ; that the defendants knew of his conduct in this respect, and assented thereto ; and that the plaintiffs pm-chased and paid for the pork, without knowing that the same had been consigned to the defendants or advanced on by them.
    Upon this evidence, the presiding judge instructed the jury, that the plaintiffs might recover the proceeds of the ten barrels of pork in this form of action, if the jury should be satisfied from the evidence, that.the pork had been sold and delivered by Gibson to the plaintiffs, that the defendants had refused to deliver the same to them, and had afterwards sold the pork and received the proceeds, prior to the demand of the plaintiffs upon them for the money ; that the separation of the ten barrels from the mass and the hoisting of a portion of it from the cellar of the defendants, if the jury should find these facts proved, constituted a valid delivery thereof; that Gibson, the consignee, without proof of some special circumstances or authority, had no right to pledge the pork for an advance made to himself; that the defendants could not therefore acquire a valid lien thereon for their advances to Gibson, on his own account, or against boná fide purchasers, after a sale and de livery to them; that if the jury should find, that the defendants, prior to the demand of the plaintiffs on them for the proceeds of the ten barrels, had received a sum from the sales of the pork more than sufficient to reimburse them for their advances, and refused to pay over to the plaintiffs any part of such balance, the plaintiffs could recover in this action so much of the balance as would be equivalent to the proceeds of the ten barrels, if there was so much in their hands; and that if the defendants had allowed Gibson to treat the pork as his own, while in their possession, and, after their advances upon it, to sell the same to purchasers and to receive the proceeds, they could not set up their title as against bona fide purchasers, after a sale and delivery. On this last point, the jury were directed (neither of the parties objecting) to find specially.
    The jury returned a verdict for the plaintiffs, and found specially that the defendants had allowed Gibson to treat the pork as his own, and to deal with and sell it accordingly.
    The defendants alleged exceptions.
    
      B. F. Brooks, for the defendants,
    cited Mackay v. Holland, 4 Met. 69, 74; Lee v. Shore, 1 B. & C. 94; Jones v. Hoar, 5 Pick. 285; McCombie v. Davies, 6 East, 538; Kennedy v. Strong, 14 Johns. 128.
    
      H. W. Smith, for the plaintiffs.
   Shaw, C. J.

The consignee, by attempting to pledge the goods, consigned to him for sale, to the defendants, created no valid lien in their favor. The pledge was void as against the owner.

The power of the consignee to sell the goods was not revoked by his taking an advance and hypothecating them ; and therefore his sale to the plaintiffs, bond fide, and for a valuable consideration, was a valid contract of sale, and gave them a good title, if followed by an actual or constructive delivery. Had the ten barrels been identified and designated by marks and numbers, at the time of the sale, the specific ten barrels would be the subject of the sale, and then an order on the warehouse keeper to deliver them would be a good constructive delivery to vest the property fully in the vendee. But, not being so marked and numbered, and being part of a larger mass, no particular ten barrels would thus vest, until a separation. But, when the vendors’ clerk, accompanied by the vendees’ servant, went and separated the ten barrels from the residue of the lot, it was a sufficient designation, to complete the sale and delivery of the ten barrels.

No question arises in this case, as to the defendants’ lieu .or storage, if any thing was due on that account: 1st, Because no such claim was made at the time of the demand, and the refusal to deliver the goods was not placed on that ground; and &d, Because the defendants retained and sold the goods, and this suit is for the proceeds. But, if the defendants could have asserted any claim of lien, on account of their advance, they waived it, by permitting the original consignee, to sell the goods as his own, and receive the pay, which fact was found by the jury. This was an implied waiver of their claim to such a lien, and a ratification, on their part, of the sale, which Gibson, as original consignee, had authority from the owners to make.

Exceptions overruled.  