
    Ellsworth Tuthill et al., Resp’ts, v. William H. Skidmore et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    1. Vendor’s lien—Revival op—Dishonor op notes received in payment will revive.
    Although upon a sale of goods the title passes to the vendee, yet if they remain in the possession of the vendor until the dishonor of notes given therefor, his lien for the unpaid purchase money revives.
    2. Same—Claim op attaching creditors op vendee is subject to.
    Attaching creditors of the vendee succeed only to such rights as their debtor possesses.
    3. Same—Stoppage in transitu—What evidence op vendee’s insolvency will warrant.
    The dishonor of notes given in payment for goods is such evidence of insolvency as would warrant the vendor in retaking goods, although the terms of credit had not expired.
    4. Election op claims—When improper to direct.
    Where the nature of the plaintiffs’ claim is in doubt, they should be permitted to prove the facts, and the court should allow such recovery as it may deem to be their right. In such case, they should not be required to elect upo.: which claim they will proceed.
    
      The plaintiffs, under the firm name of Ellsworth Tuthill & Co., have for several years been engaged in the business-of taking menhaden fish and manufacturing the same into oil and scrap, the latter to be used as a fertilizer. Their factory and place of business is at Promised Land, in the town of East Hampton.
    On the 11th day of September, 1886 (through H. W. Everett & Co., brokers), they entered into the following, agreement with Walter E. Lawton (then doing business-under the firm name of Lawton Brothers:
    [Duplicate.]
    New York, September 11, 1886.
    Sold for account of Messrs. Ellsworth Tuthill & Co., to Messrs. Lawton Bros., New York, five hundred (500) tons-sellers’ usual good make, platform dried, fish scrap—not treated with acid—of this season’s make, to be ready for delivery before close sellers’ works, at twenty-eight dollars-($28.00) per ton (of 2,000 lbs.) actual weight in bulk, f. o. b, sellers’ factory, Promised Land, L. I.
    Terms, payment by buyer’s notes at four (4) months, with interest added _ at rate of six per cent (6) per annum from date of delivery, on presentation bills of lading, invoice, weigher’s report, and Skilwell & Cladding’s certificate of moisture, if scrap is removed before closing seller’s factory this fall, or if scrap is not removed before such time, buyers are to give their notes bearing same interest, for an approximate amount, bearing date of such closing. Buyers to have privilege of leaving scrap at their own risk in seller’s factory, free of charge, for storage till opening of fishing season of spring, 1887, provided if they remove any scrap between such closing and opening, buyers are to pay thirty-five cents (35c.) per ton for loading. Scrap guaranteed not to exceed twelve per cent (12) moisture, Skilwell &• Cladding’s analysis from samples, to be drawn in the usual way. Scrap to be in good order and condition.
    H. W. EVERETT & 00. .
    On or about the 12th of the following November, they received from Lawton three notes, of which the following-are copies:
    $5,000.00.. New York, Nov. 12, 1886.
    Four months after date, for value received, we promise-to pay to the order of Ellsworth Tuthill & Co., five thous- and dollars.
    Payable at 31 Broadway.
    Due M’ch 15th. LAWTON BROTHERS.
    No. 5642, Acc’t Fish Guano.
    
      $5,000.00. New York, Nov. 19, 1886.
    Four months after date, for value received, we promise to pay to the order of Ellsworth Tuthill & Co., five thous- and dollars.
    Payable at 31 Broadway.
    Due M’ch 22. LAWTON BROTHERS.
    Acc’t Fish Guano.
    $3,000.00. New York, Nov. 26, 1886.
    Four months after date, for value received, we promise to pay to the order of Ellsworth Tuthill & Co., three thous- and dollars.
    Payable at 31 Broadway.
    Due M’ch 29. LAWTON BROTHERS.
    No. 5,664, Acc’t Fish Guano.
    About the same time, or soon thereafter, the plaintiffs sent Lawton a paper, of which the following is a copy:
    “Promised Land, Nov. 12, 1886.
    “We hereby certify that we hold five hundred (500) tons of platform dried fish scrap of good quality and in good condition, in bulk, subject to the order of Messrs. Lawton Bros., in our factory at Promised Land, Long Island, Suffolk Co., N. Y., as per .terms of contract, dated September 11.
    “ELLSWORTH TUTHILL & CO.’”
    Nothing further, either directly or indirectly, has ever transpired in regard to this business transaction between the plaintiffs and Lawton.
    At the time the notes were given there were over 500 tons of fish scrap on hand at plaintiff’s factory, and there have been ever since and are now. When the notes came due they were protested for non-payment. Nothing has ever been paid on any of them, and not a cent of the purchase money for the scrap has ever been paid or tendered.
    On or' about the day when the first note became due (March 15, 1887), Lawton disappeared from New York city where, up to that time, he had been largely engaged in speculative enterprises, and has not been seen since. It appears in evidence, by the non-payment of these notes and by the large judgment for $22,629.66, taken against him by Joseph L. Morton, the attaching creditor, on the 15th day of June, 1887 (all of which still remain unpaid), that he was at that time insolvent, and has since continued to be and still is insolvent.
    On the 29th day of March, 1887, the above named Joseph L. Morton, a creditor of said Walter E. Lawton, procured and placed in the hands of the defendant, William H. Skid-more (then acting sheriff of Suffolk county), an attachment against the property of said Walter E. Lawton, and on that day, by virtue of such attachment, said acting sheriff seized the 500 tons of fish scrap in question in this suit. Such seizure, however, was merely formal by way of serving the attachment.
    The sheriff did not actually disturb or move the scrap, or any part thereof, but left it where he found it, and where it has always been in plaintiffs’ factory.
    The defendant Hand is merely a deputy of Sheriff Skid-more and assisted him in serving the attachment. The plaintiffs orally, and by serving on Skidmore a paper, of which the following is a copy:
    “Sir—You will please take notice that the certain fish scraps at the factory of Ellsworth Tuthill & Co., Promised Land, 1ST. Y., which is now levied upon by you and which is in your custody by virtue of warrants of attachments issued herein against the property of the defendant in each of the above entitled actions, is our sole and absolute property, and we hereby demand that the possession of the same be forthwith surrendered.to us. Or, if we are not the absolute owners thereof, we have a lien thereon for the purchase money, and we hereby demand that the possession of the said scraps be forthwith surrendered to us.
    “Dated May 13, 1887.
    “Yours, etc.,
    “ELLSWORTH TUTHILL & CO.
    “ Thomas Young, Attorney,
    “ Office and Post Office Address, Huntington, H. Y.”
    demanded a return of the scrap.
    Such demand not being complied with, the plaintiffs on or about May 13, 1887, began this replevin suit to recover the possession of the scrap, and replevied the same. The defendants, Skidmore and Hand, appeared by their attorney, Abram Kling, Esq., and put in an answer justifying their possession under said attachment. They also gave the undertaking required by law and reclaimed the goods. A summons and complaint were also served on the defendant Griffin, but he signed a consent to discontinue without costs, disclaiming any right, title or interest in the property in question, and an order was granted and entered discontinuing the suit as against him. There was no dispute as to the facts on the trial, and they are believed to be substantially as above stated. The cause was tried before Mr. Justice Brown and a jury at the Suffolk circuit in October last. At the close of the evidence, there appearing to be no disputed question of fact, and each party asking the direction of a verdict in his favor, the judge, by consent, directed a verdict in blank, and heard argument on the questions of law at Brooklyn, and afterwards wrote an opinionSuch demand not being complied with, the plaintiffs on or about May 13, 1887, began this replevin suit to recover the possession of the scrap, and replevied the same. The defendants, Skidmore and Hand, appeared by their attorney, Abram Kling, Esq., and put in an answer justifying their possession under said attachment. They also gave the undertaking required by law and reclaimed the goods. A summons and complaint were also served on the defendant Griffin, but he signed a consent to discontinue without costs, disclaiming any right, title or interest in the property in question, and an order was granted and entered discontinuing the suit as against him. There was no dispute as to the facts on the trial, and they are believed to be substantially as above stated. The cause was tried before Mr. Justice Brown and a jury at the Suffolk circuit in October last. At the close of the evidence, there appearing to be no disputed question of fact, and each party asking the direction of a verdict in his favor, the judge, by consent, directed a verdict in blank, and heard argument on the questions of law at Brooklyn, and afterwards wrote an opinion directing a verdict for plaintiffs, and judgment was entered accordingly. From that judgment the defendants take this appeal.
    
      Thomas Young, for resp’ts; Abram Kling, for app’lts.
    
      
       Brown, J.—The agreement of September 11th, appears to provide for payment by the vendee in two cases.
      First, in case of actual delivery before the closing of plaintiffs’ work, and second, in case of actual delivery after that time.
      In the first case notes were to be given upon presentation of bills of lading, weighers’ report, and chemists analysis of moisture, and were to bear interest from daté of delivery. In the second case notes were to bear interest from the date of the closing of the works, and were not to be for the full amount due on the contract, but for an approximate amount, and the goods were to be left in the factory at the buyer’s risk.
      I think that the parties intended in the latter case that the title to the goods should pass to the vendee. In no other way could the property remain in actual possession of the vendor at the buyer’s risk. The contract would seem to contemplate in this case a waiver of the certificate of analysis, and that the buyer should rely on the warrantee contained in the contract. _
      _ The property remained in the possession of .the vendors until the_ maturity; of the notes before it was seized under the attachment, and assuming that title had passed to the vendee (which is the most favorable view that_ can be taken of the case for the defendants), still plaintiffs must recover, for it is elementary law that when goods are sold on credit and remain in the vendor’s possession until the term of credit expires, that the vendor then has a lien for the purchase-money and is not bound to surrender the goods without payment of the price, and this is so irrespective of the solvency of the buyer. 1 Parsons on Contracts (6th ed.), p. 526, and cases cited; Benjamin on Sales (Bennett’s ed.), § 825, and cases cited in note.
      But in this case I think insolvency is proven. Lawton disappeared from his place of business about the time of the maturity of the first note. He was largely indebted, and judgment for a large amount has since been entered against him. Unexplained, the evidence shows insolvency. This being the fact plaintiffs would have been justified in refusing a delivery of the goods to Lawton.
      Justice and reason forbid that one man’s goods should be applied to pay another man’s debts. It is upon that plain principle of justice that the law of stoppage in, transitu rests, and if the vendor can reclaim the goods from the carrier after they have left his possession, much more can he refuse to surrender them to an insolvent buyer.
      The plaintiffs have never received a cent from Lawton, and have never parted with the actual possession of their property, and the claim that they must now surrender it to pay Lawton’s debts is calcutated to shock one’s notions of justice and right. I think the plaintiffs are entitled to recover, and'the verdict must be entered in their favor for the possession of the goods, and in case such possession cannot be had, then for its value, which is assessed by agreement of parties at $10,000. They are also entitled to the interest on $10,000 from the date of its seizure by the sheriff as damages for its detention.
    
   Pratt, J.

—If it be conceded that the title to the goods passed to the purchaser, which may admit of doubt, the fact remains that as the goods continued in the vendor’s possession until the notes given therefor became dishonored, his lien for the unpaid purchase money revived. Story on Sales, § 287.

And as the defendants, under their attachment, can only succeed to such rights as their debtor possessed, it follows that the sheriff could not lawfully take the goods from these plaintiff’s in disregard of their vendor’s lien.

This would be true irrespective of the insolvency of the vendee. But the evidence of the vendee’s insolvency is ample. His allowing his notes to be dishonored is evidence of insolvency which would enable the vendor to retake his goods even though the term of credit had not expired.

The court was entirely right in refusing to require the plaintiffs to elect upon which claim they would proceed. Where the nature of a plaintiff’s claim is in doubt be should be permitted to prove the facts, and the court should allow such recovery as it may judge to be his right.

It is a travesty of justice to require a party to elect, and when his election is made, to say, in effect, had you elected otherwise you might have recovered, now you must fail. If a court were a mere debating society, such a course might be proper, but if it is an instrument of justice, such methods can only serve to defeat its object. The difficulties, in obtaining justice are sufficiently great that no need exists-to increase and aggravate them by traps and technicalities.

If the court finds difficulty in deciding upon what ground a party’s recovery should go, so much the greater must be the difficulty of counsel who cannot so accurately know the views of the tribunal upon which the decision must depend.

Judgment affirmed, with costs.

Dykman, J., concurs.  