
    CHARLES H. BOHDE et al. v. PETER FARLEY.
    
      Agreement of lease and conditional sale.—Waiver of right to take possession.
    
    Where the owner of certain chattels leases the same at a certain rent, the agreement providing that in case of non-payment at the times specified, the right of possession shall thereupon revest in the party of the first part, the owner, and also providing that if within a certain time a specified sum is paid, the chattels shall become the property of the party of the second part—the party of the first part still remains the general owner of the property, and may recover damages for a conversion thereof by a third party, though the right of possession be in the party of the second part.
    The mere receipt by the lessor of a part of an installment of rent after the same falls due, is not a waiver of his right to take possession; nor is a naked promise to ‘ ‘ not to ask further payments ” for a certain time, a waiver of the right to take possession under default theretofore made.
    Before Sedgwick, Ch. J., Freedman and Russell, JJ.
    
      Decided December 30, 1882.
    Exceptions ordered to be heard at general term on the dismissal of the complaint at trial term, at the close of the plaintiff’s case.
    The complaint alleged that the plaintiffs were the owners of a quantity of household furniture delivered by them to one Juliet Schoenrock on November 30, 1878, upon an agreement of lease and conditional executory sale, and that on July 12, 1879, the defendant wrongfully took and converted, and unjustly detains the same ; that Mrs. Schoenrock made default in the payment of the rent reserved for the use of the furniture, that the plaintiffs had not agreed to extend the time for the payment of the accrued rent, and were entitled to the immediate possession of the property ; that on July 30, and after Mrs. Schroenrock had made default, the plaintiffs demanded the return of the property to them, but that the defendant retains it to their damage, &c. There were similar allegations in regard to a quantity of furniture delivered to Mrs. Schoenrock by the plaintiffs on December 3. The plaintiffs also made a similar claim upon an assignment to them in relation to certain household goods delivered to Mrs. Schoenrock on November 23,1878, by one Stephen A. Spencer. The answer was a general denial.
    The agreement on which the furniture first described in the complaint was delivered to Mrs. Schoenrock, was as follows: “This agreement, made by and between Bohde Bros, of the first part, and Mrs. Ernest Schoenrock, daughter of Gen. A. G-ridley, of 244 West Fifty-sixth street, city of New York, county of New York, of the second part, witnesseth : The party of the first part hereby rents furniture and bedding, as per schedule, [then follows list] to the party of the second part, for the period of twelve months, from the date hereof, for the "consideration of one hundred and fifty dollars paid down and the sum of fifty or more dollars a month, payable promptly at the office of said Bohde Bros., 414 Sixth Avenue, corner of Twenty-fifth street, New York, on the first day of each month consecutively, during the continuance of said agreement, commencing on the nineteenth day of November, 1878. And the party of the second part agrees to use the said furniture with proper care, and pay for the use thereof, the said several sums above mentioned as there specified. In case the said party of the second part shall fail to make said payment on the days above named, unless by special agreement, or shall, in any way, violate any of the agreements hereto, the right of possession of the said furniture shall thereupon revest in the said party of the first part. And it is further agreed by and between said parties, that if the party of the second part shall at any time within three months from this date, pay.to the party of the first part the sum of $729.30, the party of the first part will, on receipt of said sum, deliver to said party of the second part all the articles mentioned in schedule as above, with a receipted bill of sale, and it is further agreed by and between said parties, that if full amount is not paid in the period of three months, the sum of $35 is to be added to the sum above named, and it is further agreed between said parties, that fifteen days grace will be allowed on each payment, and at the expiration of twelve months, if full amount is paid, to deliver the above goods with a receipted bill of sale thereof, but this further agreement is not to be understood as in any way affecting the agreement to rent the furniture as above ; which rented furniture is, and shall remain the property of said party of the first part, until he otherwise hereafter disposes of it, and is not to be removed from the present residence of the party of the second part, without full authority in writing from the party of the'first part hereto. In witness, etc.”
    The agreement of December 3 and the agreement with Spencer were in substance like the above, except that in the Spencer agreement Mrs. Schoenrock was to pay $50 down, and $50 a month, payable promptly at Spencer’s office on the 15th day of ea ch month, consecutively, during the continuance of the agreement, commencing on January 15.
    On the trial the plaintiffs proved the delivery by them to Mrs. Schroenrock of the furniture described in the first two counts of the complaint, and that she paid, at the time of the first delivery, $145; January 17, $50; April 4, $100 ; May 2, $25,—in all, $320 on account of the first contract. Hothing was paid on account of the second. On May 2, Mrs. Schoenrock told one of the plaintiffs that she and her husband were going to Europe; whereupon he said he would wait for further payments on her contracts with him until she got back, she stating that she would likely be gone some time, two or three months. The plaintiffs also proved the delivery by Spencer to Mrs. Schoenrock of certain furniture, and the subsequent assignment of his claim to the plaintiffs. Mrs. Schoenrock paid Spencer at the time of the agreement $50, and on April 4,1879, $25, and nothing thereafter. Spencer testified with reference to the transaction, “ I allowed the matter to run along different from the contract. I knew of her going to Europe about the time she went.” But both he and Mrs. Schoenrock testified that there was no agreement or statement on the part of Spencer that he would wait for further payment until her return from Europe.
    Mrs. Schoenrock placed this furniture in a French flat house, 244 West Fifty-sixth street, owned by the defendant. This flat had been rented from the defendant by her husband. She, with her husband,' went abroad on May 5, 1879, leaving this furniture in those apartments in charge of a servant. She returned July 26, 1879, and upon going to the apartments was denied admission, and ascertained that the furniture left there had been sold at auction by the defendant’s direction and bought in by him.
    On July 12, 1879, the defendant took possession of the premises and sold the furniture in question at auction, himself being the purchaser, for the sum of $144. There is a mention in the bill of sale that the sale was upon a chattel mortgage ; but there was in fact no chattel mortgage, although there had been some conversation between Mrs. Schoenrock and the defendant, before her departure for Europe, about giving a chattel mortgage to secure the rent which should accrue' during her absence. On July 29,1879, written demands upon the defendant were made by the Bohdes and by Spencer through their attorney for the return of the furniture in question.
    The trial judge dismissed the complaint at the close of the plaintiffs’ case, on the ground that “the plaintiffs have not made out a case, not having proved that they demanded payment of the installments from Mrs. Schoenrock and that sire refused to pay them; that, therefore, they had not shown that they are entitled to'possession.”
    
      
      Arthur Furber, for appellants.
    
      Barnum & Rebhan, for respondent.
   By the Court.—Horace Russell, J.

—[After stating the facts as above.]—The decision below was put entirely upon the technical ground that the plaintiffs were not entitled to the right of possession as between them and Mrs. Schoenrock, and, therefore were. not in position to maintain an action against a wrongdoer for the conversion of property of which they were the general owners.

1 cannot agree to either branch of the proposition.

1. That the plaintiffs were the general owners of the property, there can be no question. The validity of agreements of lease and conditional sale, such as the one before us, has several times been under consideration by the courts' of last resort and everywhere recognized and upheld (Cole v. Mann, 62 N. Y. 1; Bean v. Edge, 84 Id. 510 ; Coman v. Larkey, 80 Id. 345; Ballard v. Burgett, 40 Id. 315; Austin v. Dye, 46 Id. 500).

In these cases the’title of the vendor, under agreements like the one before us, was held to be good as against bona fide purchasers for value. It would, then, certainly have been so as against a tort feasor.

I think the plaintiffs were entitled, even as between them and Mrs. Schoenrock, to the possession of the property, and that, if they were not, while they might not have been able to maintain the action of trover, under the old forms of pleading, they would have been able to maintain case.

The complaint complies with the rule established by the Code by stating the facts, and while it follows more particularly the old declaration in trover- it would, I think, have been good for trover, trespass, or case, and, except in its prayer for relief, for detinue and replevin. The old form» of pleading having been abolished, if the complaint and the proof given in its support entitled the plaintiffs to any relief, it should not have been dismissed. The extent of the old cases was, that while a general owner not entitled to possession could not maintain trover as against a wrongdoer, he could maintain case and recover as damages the value of his reversionary interest in the property (Gordon v. Harper, 7 Term R. 913; S. C., 2 Esp. 465; Hall v. Pickard, 3 Camp. 186; Golightly v. Ryn, Lofft. 89; Corfield v. Coryell, 4 Wash. C. C. 371; Fairbanks v. Phelps, 22 Pick.; Billings v. Tucker, 6 Gray, 368 ; Ayer v. Bartlett, 9 Pick. 156.; Forbes v. Parkhurst, 16 Id. 492).

In Ayer v. Bartlett, a well-considered case, which was twice before the supreme court of Massachusetts (6 Pick. 71; 9 Id. 156), A. sold a factory and machinery to S. upon an agreement that A. should continue the owner until S. paid certain promissory notes given for the purchase price, S., in the meantime, to have possession. Before the first note became due. the machinery was attached as S.’s property. A. brought an action against the officer containing declarations in trover and case. It was held that, although trover could not be maintained, case might be for the injury to A.’s reversionary interest, and that the measure of damages was the value of the property as it stood in the factory before removal.

So, a mortgagee may bring case against a person taking property on process from the possession of a mortgagor in possession, although the mortgage debt was not due at the time of such seizure, and in such an action may recover the value of his interest (Fairbanks v. Bloomfield, 5 Duer, 434).

2. But I think the plaintiffs were entitled to the possesssion of the property, even as against Mrs. Schoenrock.

By the terms of the first contract between them, dated November 19, 1878, she was to pay $150 down at the time the goods were delivered to her, and $50 a month thereafter at their office, on the first day of each month consecutively, and, in the event of her failure to make payments in accordance with that stipulation, the right of possession of the furniture was thereupon to revest in the plaintiffs. The evidence is, that Mrs. Schoenrock paid to the plaintiffs only $145 at the time the agreement was made; $50, January 17, 1879 ; $100, April 4, 1879 ; $25, May 2, 1879—in all, $320, on account of the first contract, and nothing upon the second.

On her agreement with Spencer she paid $50 at the time the agreement was made ; $25, April 4, 1879. Clearly, then, Mrs. Schoenrock was in default, and the plaintiffs, and Spencer, their assignor, were, for that reason, entitled to possession of their property unless they did something amounting to a waiver of that right and continuing to operate as such at the time this action was brought. So far as Spencer is concerned, the only evidence is, that he “allowed the matter to run along different from the agreement,” from which we might infer that he received the $25 paid by Mrs. Schoenrock, April 4, 1879, without acting upon his right to take possession upon default. The plaintiffs apparently did the same thing, and, in addition, told Mrs.' Schoenrock when she was about to go to Europe, that that they would wait for further payments on her contracts until she got back.

A mere extension of time is not a waiver of ’ anything. (Thompson, Ch. J., in Peterson v. Clark, 15 Johns. 204; see also Evans v. Thompson, 5 East. 193).

‘ A waiver to be operative must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting upon performance of the contract or forfeiture of condition” (Mullin, J., in Ripley v. Ætna Ins. Co., 30 N. Y. 164—quoted, with approval, as the “true rule” by Earle, J., in Underwood v. Farmers’ Joint Stock Ins. Co., 57 N. Y. 506).

It can scarcely be claimed that there, was any new consideration moving from Mrs. Schoenrock to Spencer after her last payment to him. The receipt of $25 on April 4, by Spencer, long after it was due, cannot be regarded as such an act as should estop him from insisting upon forfeiture (Gardner v. Clark, 21 N. Y. 399, 404).

There can be no doubt whatever, then, that Spencer was entitled to take possession not only when he made an assignment of his claim to the plaintiffs, but'even at the time Mrs. Schoenrock went to Europe. The position of the plaintiffs as to the goods delivered by them to Mrs. Schoenrock differed from that of Spencer only by reason of the fact that they promised her not to ask further payments until'her return from Europe. She was then in default to them. There was no consideration for this promise. It was a mere promise to extend time, not binding in law either as a promise or as a waiver, so far as previous defaults were concerned. It was binding as a waiver by way of estoppel, so far as future defaults were. concerned, but the plaintiffs had the right to take possession at that time for the defaults which had already occurred, under the decisions I have quoted.

But, assuming that the plaintiffs legally waived their right until Mrs. Schoenrock returned from Europe, that waiver expired by its own limitation before this action was brought. The terms of the contract required Mrs. Schoenrock to make payment on certain days at the office of the plaintiffs. The extension affected only the time, not the place or manner of payment.

It cannot be still further extended by the court altering place and manner, and requiring plaintiffs to seek her out and make demand. The event by which they had fixed a new limitation of time had transpired. She had returned from Europe. The extension was thereby terminated, and no demand was necessary (Stacy v. Graham, 14 N. Y. 492; Bruce v. Tilson, 25 Id. 194; Adams v. Fort Plain Bank, 36 Id. 255; Mygatt v. Wilcox, 45 Id. 306; Foot v. Farrington, 41 Id. 164).

The exceptions should be sustained and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.  