
    Alfred H. Smith et al., Resp’ts, v. Henry Clews, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    Sale—Bona fide purchaser acquires only vendor’s title.
    Plaintiff entrusted to M., a diamond broker, some diamonds and took a receipt which stated that M. had received them “on approval” to show to his customers, the diamonds to be returned to plaintiffs on demand. It was shown that by the custom of the trade the words ‘ ‘on approval” had a particular meaning and which did not in any manner enlarge the scope of .the receipt or in themselves gave M. any title to the diamonds. M. sold the stones to defendant who bought in good faith and without notice of plaintiffs’ ownership. Held, that defendant only acquired M’s rights and as the latter had no title defendant had none. ^
    Appeal from judgment and order denying motion for a new trial.
    Action to recover possession of a pair of diamond ear knol
    
      Albert A. Abbott, for app’lt; Charles H. Woodbury, for resp’ts.
   Brady, J.

This case has been pending a long time and has been subjected to the vicissitudes of judicial investigation.. It is bere for the third time after three trials. It is not deemed necessary to make allusion to what has been decided on the other appeals in this or the court of appeals, except the last exposition by "the latter court and by which the case was made dependent, as the result shows, of an éffort to be made to prove that the memorandum given by the plaintiffs to the broker Miers by a general custom or usage of the trade restricted the broker’s power of sale .and preserved the title in the owner to the merchandise entrusted by him. It was as follows:

“Hew York, April 12, 1879.
“ Received from Alfred H. Smith & Co., by their representative, B. W. Plumb, a pair of single stone diamond ear knobs lomearais, of the value of fourteen hundred dollars, “on approval,” to show to my customers. Said knobs to be returned to said A. H. Smith & óo., on demand.
E. Miers.”

The proof of the usage on the part of the plaintiffs, although contested by adverse proof, was abundant to establish it as asserted, namely, that on such a paper being given and accepted the title to the goods continued in the owner until he sold them. The question was submitted to the jury on the whole evidence broadly and squarely in terms to which no exception was taken and the jury found in favor of the plaintiffs.

They thus declared that the broker Miers had no authority to sell the merchandise, and therefore under the last decision in the court of appeals (com’n) no title passed to the defendant. He could search for and find a purchaser, report him to his principal and then obtain authority to deliver. He was not at liberty even to sell or arrange a sale except for cash, eo nomine, to be paid to his principals in order to pass the title. The rights of his principals were dominant all the time. There are many details herein -which might be invoked and criticisms indulged in to enlarge the sphere of this opinion, but that would accomplish no good purpose or add strength to the result arrived at, which is • that the judgment must be affirmed. This conclusion, as already intimated, becomes imperative in virtue of the views expressed in this action when last in the court of appeals, see 114 H. Y., 190; 23 H. Y. State Rep., 166. Justice Brown said in the course of the opinion, in which all of the judges concurred except the chief justice, “ On the former appeal this court construed the contract, in the light of the evidence then before it, to confer on Miers a power of sale, and if the same evidence was now before us, we should feel constrained to follow that decision,” and the learned justice, after referring to the fact that' Miers was personally unknown to the plaintiffs until introduced by the witness Plumb, a fact which again appears herein, said: “We have therefore no-other dealings between the parties to aid us in interpreting the contract, and are confined to the single transaction out of which this action has grown. Upon the face of the contract, it does not import an authority to sell.” But it was held, nevertheless, that it must be presumed that the parties intended some meaning by the use of the words “ on approval,” and as the meaning did not appear from the context, parol evidence was admissible to enlighten the court and to show the intent of the parties. The parol evidence has been admitted in reference to the words “on approval” and their meaning ascertained by the verdict of the jury, the result of which is that no title passed to Miers, and he had therefore none to convey. This proposition, even where the seller has possesion of the article sold, and the buyer is acting innocently ana in good faith, is discussed by Justice Brown, and the defendant’s title declared to be dependent wholly on Miers’ authority to sell. It is only necessary, in reference to the exceptions taken upon the trial, to say that they chiefly relate to the reception of evidence as to what was understood on the trial by the words “ on approval,” the right to give which was expressly asserted by the commission of appeals. There is no vitality in the others. Indeed they were all presented on the brief in such a manner as to be entitled to little, if any, consideration. They have nevertheless been examined and discovered to be of no force. The trial was so admirably conducted that no errors marked its progress, and this controversy appears at length to have been so disposed of that it may rest without danger of further struggle by the contending parties.

In conclusion it is only incumbent on us to say that the factors’ act, Laws 1830, chap. 179, has no application to the transaction between Miers and plaintiffs. The merchandise, as the jury have found, was not entrusted to Miers to sell or for advances to be. made.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.  