
    HUNTINGTON against DOUGLASS.
    
      New York Superior Court ;
    
    
      General Term, November, 1863.
    Evidence.—Measure of Damages.—Attachment.—Sales.
    In an action for damages for the conversion of goods, which the plaintiff had bought of the defendant and left in Ms possession under a special agreement, where the only proof of a conversion is a demand and refusal, evidence is admissible that, at the time of the sale, the goods belonged, as the plaintiff knew, not to the defendant, but to a third person, who, before the demand had taken the goods away from the defendant against Ms will.
    So is evidence that before the demand they had been seized by the sheriff on an attachment against such true owner.
    The warranty of title, implied in a sale of chattels, does not estop the seller from setting up that he was deprived of possession by paramount title
    (Per Robertson, J.)
    Appeal from a judgment entered on a verdict for the plaintiff.
    The action was brought by Calvin Huntington against Charles Douglass and Thomas Douglass to recover damages for the conversion of certain goods, alleged in the complaint to have been “ converted ” by the defendants to their own use. The defendants, by their answer, denied the plaintiff’s ownership of the propertythey also denied any conversion thereof by them.
    The cause was tried on the 25th of March, 1863, before Mr. Justice White, and a jury.
    The plaintiff read in evidence an agreement as follows:
    “ Insured in Market Ins. Co.,
    “ N. Y., June 21st, 1861.
    “ We, the undersigned, have sold to Calvin Huntington, and “ delivered, as per invoice rendered this date, four thousand “ five hundred and forty-nine TSTST dollars, tools and mdse., for “ the sum of two thousand two hundred and fifty dollars, cash “paid to Harlow Huntington, on debts due him from the “ Douglass Manfg Co.
    
      “ The aforesaid goods are all stored in the north-east side £< of the upper basement of the store now occupied by us, Bo. “ 68 Beekman street, B. Y., insured in the name of Calvin “Huntington, and held subject to his order, any portion of “ which he may order sold, on consignment, by us, for which “ sales we agree to pay monthly, in cash, the amount the goods ££ cost him. The proceeds of the goods, over and above the “ costs and charges to Calvin Huntington, to go to the pay- “ ment of other liabilities of Harlow Huntington, for B. B. “ Douglass. , “ Charles Douglass,
    £< June 21st, 1861. “ Thomas' Douglass.”
    The plaintiff also proved an invoice, or bill of parcels of the goods, mentioned in the foregoing agreement, the heading to which was
    “ Mr. Calvin Huntington
    Bought of Thomas Douglass.”
    Then followed the items of goods sold, amounting in the aggregate to four thousand five hundred and forty-nine dollars and fifty-three cents.
    The invoice bore date on the same day as the agreement, and was receipted as follows:
    “ Deceived payment, on the conditions specified in the agreement, " Thomas Douglass.”
    There was no other delivery of the goods than such as is evidenced by the written instruments above referred to, and their being sepárate and placed by themselves in a part of the defendants’ store. The papers were signed at the defendants’ store, in the basement of which the goods had been placed.
    Subsequently, the goods were demanded by the plaintiff, of the defendant Charles Douglass, who refused to deliver them.
    The defendants offered to prove that the goods in question belonged to one Ames, and that the plaintiff knew this at the time of the sale to him, and that, before any demand was made of the defendants by the plaintiff, Ames, against the directions of the defendants, took possession of the property, and removed it from the defendants’ premises. This evidence was excluded by the judge, and the defendants excepted.
    There was conflicting evidence as to the delivery of the bill of sale to the plaintiff; the defendants testifying, substantially, that Bottom, to whom the paper was delivered as the agent of the plaintiff, was not to deliver it until the money was paid, and that the money had not been paid. This was contradicted by both Bottom and the plaintiff.
    The defendants also offered to prove that before the plaintiff demanded the goods, a portion of them had been taken and removed by the sheriff, under an attachment against Ames. -This evidence was also excluded by the judge, and the defendants excepted.
    At the close of the evidence, the judge directed a verdict for the plaintiff, leaving the jury to assess the damages from the evidence before them. To this the defendants excepted.
    From the judgment entered upon the verdict, the defendants appealed to the General Term.
    
      Thomas Nelson, for defendants, appellants.
    To sustain this action, which, in its nature, is the action of trover at common law, the plaintiff must prove a title to the property either general or special, with the right of its immediate possession, and a conversion by the defendants.
    
    I. The plaintiff has no general property in the goods. The answer contains a special denial of his title, as well as of a conversion.
    At most he had but a special property, as security for such money as he had advanced. The goods were not to be taken by the plaintiff from the store, nor to be consigned to or sold by any other party than the defendants. Aside, therefore, from the relation of vendor and vendee, the relation of bailor and bailee is created by the express terms of this contract. The surplus on such sale was to be applied for the benefit of Harlow Huntington, upon his liabilities for FT. R. Douglass. The plaintiff had no interest in this surplus. The contract expressly" provides for the amount to be paid to the plaintiff, and what shall be paid to l'T. R. Douglass on debts for which Harlow Huntington was liable ; thus by express provision, cutting off all personal claim of the plaintiff on that surplus, or upon the goods, after repayment to him of the sum he had advanced.
    II. The plaintiff has no special property in the goods which will enable him to sustain this action.
    
      (a.) The contract or bill of sale was never delivered; the conditions upon which its delivery to the plaintiff was to he made were never performed by him.
    The defendants are not estopped from proving those facts by the execution of that bill of sale, for the object of it is to show that the bill of sale was never perfected, and never had a legal existence (1 Greenl. Evid., § 284; Clark v. Gifford, 10 Wend., 310). The testimony is also admissible on general principles, as it contradicts no provision of the writing. Its effect is to show how the money was to be applied, wdiicli in the writing the plaintiff agreed to advance. It is the proof of a collateral fact, unprovided for in the agreement, and which is admissible, even in the case where the existence of the contract is not denied (1 Greenl. Evid., § 89).
    III. The fact that the goods were taken from the possession of the defendants by Oakes Ames, under a previous and paramount title, before the commencement of this suit, and before a demand was made, is a bar to this action (Edson v. Weston, 7 Cow., 278; 1 Smith's Lead. Cas., 480; Shelburg v. Scottsfield, Yelv., 23 ; Bates v. Stanton, 1 Duer, 79; Wilson v. Anderton, 1 B. & Ad., 450).
    As a general rule, if property is sold by one having it in his possession at the time, but to which he has no title, the remedy of the purchaser is upon the implied warranty of title. The action of trover is not the appropriate remedy when the vendor has no title to the property sold, and of which defect the purchaser was informed at the time of his purchase. In such case, no fraud has been committed upon him, and he has sustained no injury for which an action in form ex delicto can be sustained (Hawkins v. Hoffman, 6 Hill, 588 ; Whitney v. Slauson, 30 Barb., 276).
    IY. There has been no conversion of this property by the defendants, and for that reason, there was error in directing a verdict for the plaintiff, (a.) The demand was made after the goods had been taken, from the possession of the defendants. (b.) It is not pretended that the defendants have used the goods, or in any way appropriated any part of them to their use and benefit. A conversion is a positive tortious act, and it is not sufficient for plaintiff to prove mere negligence (3 Phil. Ev.; Cow., Hill & Edws. Notes, 539; Andrews v. Shattuck, 32 Barb., 396; Whitney v. Slauson, 30 Barb., 278 ; Polley v. Lenox Iron Co., 2 Allen, 184). Nor can plaintiff sustain his judgment by saying that his proofs show a cause of action, if it is other than, and different from, that set out in the complaint (Moore v. McKibbon, 33 Barb., 246 ; and see Hawkins v. Hoffman, 6 Hill, 588).
    Y. There is error in the direction of the court, that a verdict be rendered for the plaintiff for the whole amount and interest, instead of merely for the extent of the plaintiff’s lien or claim upon the property. The value of the goods taken in the attachment should have been deducted (Story on Cont., § 742, a. See also Ogle v. Atkinson, 5 Taunt., 759 ; Larschman v. Machin, 2 Stark., 311).
    YI. The verdict is excessive.
    
      C. A. Nichols, for plaintiff, respondent.
    I. The testimony offered, to prove a title in Oakes Ames prior to the conveyance to the plaintiff is wholly inadmissible, as it would at once allow a bailee to dispute the title of his bailor, and a vendor to set up his own fraud against the title of his vendee (Marvin v. Elwood, 11 Paige, 365 ; Bates v. Stanton, 1 Duer, 79).
    II. The inquiry as to what conversation occurred prior to the execution of the papers was plainly irrelevant: the writing was the best a,nd only admissible evidence of the intention.
    III. The offer to prove that the consideration was to be paid to the defendants could not be entertained, for by the agreement'the plaintiff was to pay it to the creditors of the defendants. The court offered the defendants an opportunity to prove that there was never an absolute delivery, to the plaintiff, of the bills of sale.
    IY. The court was correct in charging that the recovery of tho plaintiff must be for the actual value of the goods, and was not limited to the amount of consideration paid.
   By the Court.—Monell, J.

It was error to exclude the evidence offered by the defendants, that at the time of the sale, Ames was the owner of the property in question; and that subsequently, and before the demand, he took posession and removed it from the defendants’ premises and control.

The demand and refusal, upon which alone the plaintiff rested as proof of conversion, was prima facie evidence merely, and could be repelled by.proof that a compliance with the demand was impossible (Kelsey v. Griswold, 6 Barb. S. Ct., 436 ; Hill v. Covell, 1 N. Y. [1 Comst.], 522; Whitney v. Slauson, 30 Id., 278 ; Andrews v. Shattuck, 32 Id., 396).

The offer was to show that, at the date of the bill of sale, Ames was the owner of the property; that the plaintiff knew it, and that subsequently, and before the plaintiff’s demand, Ames took possession, and removed the property “ against the wishes and in spite of the remonstrances of. the defendants.” If this evidence had been admitted, it would have repelled the proof of conversion resting in the refusal of the defendants to deliver the property to the plaintiff, they not then having the possession or any control over it.

Of the same character was the evidence subsequently offered by the defendants,—that before the demand, a portion of it had been seized and removed by the sheriff under an attachment against Ames. As is well settled by the cases above cited, such proof would have shown that the defendants could not deliver the property, and hence there was no conversion.

There must be a new trial, with costs to abide the event.

Robertson, J.

There was conflicting evidence as to the absolute delivery of the instrument of the 21st of June, 1861; also as to the waiver of any condition upon which' it was placed in the hands of Bottom. The direction of the learned judge to the jury to find a verdict for the plaintiff was peremptory. Unless the condition upon which the evidence tends to show a conditional' delivery, was one which could not have been imposed, because contrary to the face of the agreement, the charge was erroneous.

The instrument on its face purports to be executed for a certain sum “ cash paid to Harlow Huntington on debts due (i him from the Douglass Maufg. Go.” The defendants testified that the depositary (Bottom) was not to deliver it, until that money was paid, and efforts were made to procure it. There is nothing in the condition contrary to any stipulation in the agreement. If it had been absolutely delivered, it would have been evidence of the payment, and the delendants would have been obliged to disprove it.

If the instrument had been absolutely delivered, it was clearly not an absolute sale of the goods. The defendants by it were only to repay to the plaintiff what is called the cost of the goods, which was money paid to Harlow Huntington for debts of the Douglass Manfg. Co.; all the residue was to go to the payment of other liabilities of Harlow Huntington for H R. Douglass. It probably was an. assignment im, trust, to secure, first, the debt due to the plaintiff, and secondly, other liabilities of Harlow Huntington for a third person, and possibly may have vested the whole title in the plaintiff.

I do not understand that a warranty' of title on a sale of chattels can be so far implied as to estop the vendor from setting up the deprivation of possession by paramount title. Such a warranty is a mere executory covenant, the breach of which entitles the injured party to damages. The law will not tolerate the absurdity of both implying a warranty to enable the party to recover damages, and an estoppel, which presupposes that the warranty has been complied with. If sued for not delivering the property as mere bailees, the defendants of course-can set up paramount title in another, who had a right to take possession. The cases cited by my brother Monell, fully establish this. There was evidence offered to show such taking possession, and it was excluded.

The delivery of the goods to the plaintiff was entirely constructive, and depends upon the delivery of the instrument of June, 1861.

I concur in thinking the judgment should be reversed, and a new trial granted, with costs to .abide the event.

Judgment reversed.  