
    Alfred H. Smith and ano., Resp’t, v. Henry Clews, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 19, 1887.)
    
    Conditional sale—Privilege to show to customer and return on DEMAND.
    A diamond merchant, after selling diamonds on two former occasions for plaintiffs, obtained a pair of earrings from their agent, giving a receipt . that he received “ on approval to show to my customers, said knobs to be returned (to plaintiffs)' on demand,” and sold them in good faith to defendant. Feld, that plaintiffs conferred on him the power to sell the diamonds, and that a good title passed, and that the receipt meant nothing else under the circumstances than an authority to sell the stones to a customer, if they met his approval, and if not actually sold before demand made, that they should be returned to plaintiffs on demand.
    Appeal from general term, supreme court, first department.
    
      Albert A. Abbott, for app’lt; Chas. H. Woodbury, for resp’ts.
    
      
       Reversing 33 Hun, 501.
    
   Peckham, J.

This is an action under the Code to obtain the delivery of personal property alleged to belong to plaintiffs, and to be wrongfully withheld by defendant. The plaintiffs had a verdict, which was affirmed at general term, and the defendant has appealed here. The plaintiffs claimed to be the owners of what they called a pair of diamond ear-knobs, of the value of $1,400, which came into the possession of defendant, as shown by the evidence, in the following manner: Elijah Miers was a dealer in diamonds in New York. His business was to procure diamonds from the larger dealers, and sell them to his customers. Before the 13th of January, 1879, he had procured from an authorized agent of the plaintiffs a pair of diamond ear-rings, which on that day he had sold to the defendant for §300, and had received the check of defendant, payable to his order, in payment therefor. Before the 23d day of January, 1879, Miers had procured another pair of ear-rings from plaintiffs’ said agent for $450, receiving in payment the .first pair of ear-rings, and the check of defendant for the balance of $150. Miers had paid to plaintiffs’ agent the price of these diamonds after the sale to defendant. The defendant had purchased them in good faith from Miers, assuming him to be the owner. He intended the first pair as a present for his wife, but, when shown to her, she preferred a more expensive pair, and hence the second purchase. These also proved unacceptable, and it was some time after their purchase by defendant before the diamonds in question were presented to him for purchase, he having in the mean time kept the second- pair, and, upon' the purchase of the diamonds in question of the same man, Miers, he gave back the second pair, and paid $650 in addition, thus making up $1,100, the purchase-price of these last diamonds. There is no question of the bona fides of this series of purchases by the defendant.

The evidence is uncontradicted as to the manner in which Miers obtained the last diamonds from the plaintiffs. They had delivered them to Plumb, the diamond broker who had delivered the other diamonds to Miers. One of the plaintiffs was asked how it happened that he delivered these diamonds to Plumb, and he testified that he could not say whether it was at Miers’ request or not, but that Miers had called on him before he delivered them to Plumb, and had said to him that he had a customer for a pair of diamond ear-knobs; and, although the plaintiff could not say that he told Miers that he would send him the diamonds through Plumb, yet he says he stated to Plumb that he would do so, and he did do so, and he authorized Plumb to deliver the diamonds to Miers, and that that is the way Miers got them. The witness also said he knew Miers had the diamonds in his possession immediately; that they were taken from the plaintiffs’ office and delivered to Miers by Plumb. They were delivered to Plumb on the 12th of April, and by him to Miers on that day. When Plumb delivered them to Miers, he took from him a receipt in this form:

“New York, April 12, 1879.
“Received from Alfred H. Smith & Co., by their representative, B. W. Plumb, a pair of single-stem diamond ear-rings,-10 & 1-8 carats, of the value of fourteen hundred dollars, on approval to show to my customers; said knobs to be returned to said A. H. Smith & Co., on demand.
“E. MIERS.”

Having thus become possessed of the diamonds, Miers, as has. been stated, sold them to defendant, and the question is, did he get a good title as against the plaintiffs ?

Taking the undisputed evidence; and reading this receipt in the light thereof, we cannot resist the conclusion that the plaintiffs conferred upon Miers the power to sell these diamonds, and of course to give a good title, and therefore the court should have directed a verdict for the defendant.

The plaintiffs were dealers in diamonds, and they knew Miers, and that he was engaged in the business of a diamond dealer—a seller of the stones to whomsoever he chose. They had on two former occasions intrusted, through their agent, diamonds to Miers, who had sold them, and accounted for the proceeds of the sale without any fault being found, so far as appears, on account of any lack of authority to sell. They were informed by Miers on this particular occasion that he had a customer for a pair of diamond ear-rings, and these diamonds were then intrusted to Miers by the plaintiffs, through their agent, Plumb. Upon taking them, Miers gives the receipt spoken of. Now, upon these facts, what other meaning can be attached to that receipt than that Miers had power to take these diamonds, show them to his customer, and, if approved of by the customer, sell them to him ? The fact that Miers agreed to return' them to plaintiffs on demand, must be construed with reference to the obvious purpose for which the diamonds were intrusted to him, viz., that of a sale, and, so construed, the plain meaning is that, if not already sold, the plaintiffs had the right to demand a return of the diamonds at any time, and Miers would then be bound to return them. The information given to plaintiffs by Miers, that he (Miers) had a customer for a pair of diamond ear-knobs, is susceptible of no other interpretation than that he had a customer who wanted to buy a pair. Under such circumstances, what could a dealer in diamonds mean by intrusting them to another dealer, who had a customer who wanted to buy them, and who came to this dealer for the purpose of being supplied by him with diamonds of a kind which his customer wanted to buy?

Enlightened by these facts, the interpretation oí the receipt signed by Miers is an easy matter. It can mean nothing else than an authority to sell the stones to the cus-6 tomer, if they met his approval, and, if not actually sold before demand made, they should be returned to the plaintiffs upon such demand. This conclusion, as to what was the actual authority given to Miers, does not in the least affect the propriety of the decisions cited by the counsel for the respondents, and in the opinion of the court at general term, to the effect that one intrusted simply with the possession of personal^ property, with no power to sell or pass title, cannot give title to the property even to a bona fide purchaser for value. The question here is simply what was the authority with which the man Miers was clothed, and, upon the undisputed evidence in the case, we hold it was an authority to sell.

The judgments of the general term and of the circuit should be reversed, and a new trial ordered, costs to abide event.

All concur.  