
    William O. Wyckoff et al., Resp’ts, v. William H. Vicary, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January, 1894.)
    
    1. Sale—Title.
    A party, neither the owner nor one upon whom the owner has intended to confer the real or apparent ownership, cannot give a good title.
    3. Same.
    A tona fide purchaser of- personal property other than commercial paper, though from one who has the possession, acquires no better title than that of his vendor.
    Appeal from a- judgment of the county court of ¡Niágara county in favor of the plaintiffs against the defendant for the recovery of the possession of a typewriter and desk, and also from an order of said court, denying the defendant’s motion for a new ’trial on the minutes.
    
      A. A. Bradley, for appellant; Devoe P. Hodson, for respondents.
   Lewis, J.

The plaintiffs were co-partners. Their salesman, in October 1891, called in an office in the city of Lockport, having upon the door the name of “Lockport Electric Railroad, Light and Power Company,” and found in the office Mr. Charles H. Laurence. He entered into negotiations with. Laurence "for the sale of a typewriting machine and a desk. Laurence told the agent that he was the manager of the Lockport Electric Railroad, Light and Power Company; that the company desired to purchase a typewriter and desk; that he would bring the matter before the directors of the company the following Monday and have them authorize him to make the purchase, and that if the company consented he would so inform the agent. Upon inquiry being made by the agent, Laurence stated, that he should charge the machine and desk to the company if it consented to buy them. The agent thereupon delivered the machine and the desk at the office, and Laurence thereafter ‘informed him that the directors had had a meeting and authorized him to make the purchase, and the plaintiffs thereupon charged the company with the price of the machine and desk, amounting to the sum of $105. There had been some preliminary steps taken at this time looking to the formation of a company of the name mentioned, but it had not in fact been organized and has not since. Laurence had been trying to organize the company but had failed to do so; he had no express authority to act for the company in making the purchase in question. The plaintiffs learning the situation, made efforts to collect the $105 of Laurence, but failed. The defendant in good faith purchased the machine and desk of Laurence and paid him therefor, $75. Plaintiffs failing to get pay for their property, replevied it from the possession of the defendant. The jury, under proper instructions from the court, found that it was the intention of the plaintiffs’ agent to sell the property of the company and not to Laurence. There being no such company in existence, it could not take title, hence there was no sale. Aodliff v. Dallinger, 141 Mass., 1; The Peters Box Company v. Lesh, 119 Ind., 98.

The defendant contends that Laurence having assumed the right to purchase the property for a corporation not then formed, but which was expected to be organized, made himself liable to the plaintiffs for the purchase price of the property, and hence had a right to sell it to the defendant. . Laurence having falsely represented that he was authorized to purchase the property was unquestionably liable to the plaintiffs for its purchase price, but it does not follow that the plaintiffs were obliged to look only to Laurence. It was optional with them to either hold him or reclaim their property. The sale which the plaintiffs intended and supposed they had made having failed for lack of a purchaser was not thereby turned into a sale to Laurence who conducted the transaction.

If plaintiffs had parted with possession of the property with the intention of passing title to Laurence, then, the defendant being an innocent purchaser for value from Laurence, would have obtained good title even if Laurence had obtained possession thereof by fraud. Davis v. Bechstein, 69 N. Y., 440. But the evidence tended to show, and the jury found, that the sale was not made to Laurence. He was not therefore the owner of the property and could not give the defendant a good title to it. The plaintiffs had not clothed him with apparent authority to sell it. They delivered the property, as they supposed, to acorporation. A bona fide purchaser of personal property other than commercial paper, although from one who has the possession, acquires no better title than that of his vendor. Ballard v. Burgett, 40 N. Y., 314. Laurence was at the time of the delivery of the property in charge of the office, and ostensibly had charge of the affairs of the proposed corporation, but the evidence shows that he had no authority from the company to make the purchase. It cannot be successfully maintained that Laurence could give the defendant title to the property as agent for the corporation. The corporation not having been organized, could not have an agent, neither could it take title to the property, and, then, the defendant does not claim title from the corporation, but through Laurence.

In the cases to which we are referred in the appellant’s brief,, the vendors intended to confer the real or apparent ownership upon the party under whom the defendants claimed title and right of possession, which distinguishes those . cases from the one at bar. The case was submitted to the jury with proper instructions, and we find no reason for disturbing the verdict.

The judgment and order appealed from should be affirmed.

Dwight, P. J., and Haight, J., concur.  