
    Ellsworth Tuthill et al., Resp’ts, v. William H. Skidmore et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1891.)
    
    1. Sale—Vendor’s lien—Revival of by insolvency of vendee.
    Where the price of goods sold on credit is due and the vendee becomes insolvent and refuses payment of notes given for the purchase price of the property, which remained in the vendor’s possession, the right of the vendor to retain it as security for the price is revived as against the vendee and his attaching creditor.
    3. Trial—Election of cause of action—When discretionary in court TO DIRECT.
    Where the claims are inconsistent, but they so appear plainly on the face of the complaint, the defendants should, before answering, move that plaintiff be compelled to elect; but if defendant lies by until trial and then moves, the court may, in its discretion, wait until part or all of the evidence is taken before deciding the motion, and its denial is so far discretionary that it will not be reviewed when it appears that the defendant was-not harmed.
    Appeal from a judgment of the general term of the second judicial .department, affirming a judgment for the plaintiffs entered on a verdict directed at circuit.
    September 11, 1886, the plaintiffs, under their new firm name of Ellsworth Tuthill & Co., and Walter E. Lawton, doing business under the name of Lawton Brothers, entered into the following written contract:
    “ September 11, 1886.
    “ Sold for account of Messrs. Ellsworth Tuthill & Co. to Messrs. Lawton Brothers, New York, five hundred tons, sellers’ usual good make platform-dried fish scrap, not treated with acids, of this season’s make, to be ready for delivery before .close of sellers' works, at $28 per ton of 2,000 lbs., actual weight in bulk, F. O. B. sellers’ factory, Promised Land, Long Island. Terms, payment by buyer’s notes at four months, with interest added at a rate of six per cent, per annum from date of delivery, on presentation bills of lading, invoice, weigher’s return, and Stillwell & Cladding’s certificate of moisture. If scrap 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, free of charge for storage, till opening of fish season of spring, 1887, providing if they require any scrap between such closing and opening, buyers-are to pay thirty-five cents per ton for loading. Scrap guaranteed, not to exceed twelve per cent, moisture, Stillwell & Cladding’s analysis, from samples drawn in the usual way. Scraps to be in good order and condition.”
    From the date of this contract to the date of the trial of this action (October 25, 1887), the plaintiffs at all times had on hand at their factory at Promised Land, L. I., more than 500 tons of fish scrap of the kind and quality mentioned in the contract, but the quantity sold eior any part of it was ever set apart for the vendee. November 12, 1886, the vendee gave the vendors, towards the purchase price, three promissory notes signed by the purchaser and payable to the order of the sellers, of the dates, for the amounts, and due as follows:
    
      
    
    The purchase price was $14,000, and after deducting these notes $1,000 remained, which was never paid, nor was a note given for it. These notes were all dishonored and have never been paid, nor has any part of the purchase price of the property. About the 1st of tiecember, 1886, the plaintiffs sent the purchaser the following receipt:
    “Ellsworth, Tuthill & Co.,
    “Manufacturers of Menhaden Oil and Guano,
    “ Factory at Promised Land, L. L
    “Promised Land, N. Y., 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. Lawtdn Bros., in our factory at Promised Land, Long Island, Suffolk county, N. Y., as per terms of contract dated, September 11.
    “Ellsworth, Tuthill & Co.”
    March 24,' 1887, Joseph L. Morton began an action in the supreme court against Walter E. Lawton for the recovery of money, in which an attachment was issued, by virtue whereof, March 28, 1887, the defendant Skidmore, as sheriff, and the defendant Hand, as his deputy, levied upon and seized five hundred tons of fish scrap, then stored at the plaintiffs’ factory. The quantity attached was not separated from a larger quantity of which it was a part, and never removed from the plaintiffs’ premises.
    June 15, 1887, Morton recovered a judgment against Lawton in that action for $22,629.66, which was entered in the office of the clerk of the city and county of New York, a transcript of which was duly filed and the judgment duly docketed June 27, 1887, in the office of the clerk of the county of Suffolk. May 13, 1887, the plaintiffs demanded of the defendants that they release the attachment and surrender the property to them, which was refused, and on the next day this action in replevin for the recovery of the property was begun. Upon the trial each party asked that a verdict be directed in his favor, neither claiming that there was any question of fact for the jury. A verdict was directed for the plaintiffs, upon which a judgment was entered, which was affirmed at general term.
    
      Thomas Young, for resp’ts; Abram Kling, for app’lts.
    
      
       Affirming 15 N. T. State Rep., 888.
    
   Follett, Ch. J.

It will be assumed that the title to the property passed to the vendee, which is the most favorable view which can be taken of the case for the defendants.

Permitting commercial paper to be dishonored by one engaged. in commerce, and his property to be attached in an action in which judgment is subsequently recovered by default, is evidence, and, if unexplained, is proof of insolvency. Brown v. Montgomery, 20 N. Y, 287; Booth v. Powers, 56 id., 22, 32; Abb. Tr. Ev., 616.

Neither party asserting at the trial that Lawton’s solvency was a question of fact for the jury, the court was justified in holding as a question of law that he was insolvent.

When the price of goods sold on credit is due and unpaid, and the vendee becomes insolvent before obtaining possession of them, the vendor’s right to the property is often called a lien, but it is greater than a lien. In the absence of an express power the lienor usually cannot transfer the title to the property on which the lien exists by a sale of it to one having notice of the-extent of his right, but he must proceed by foreclosure. When a vendor rightfully stops goods in transitu, or retains them before transitas has begun, he can by a sale made on notice to the vendee vest a purchaser with a good title. Dustan v. McAndrew, 44 N. Y., 72. His right is very nearly that of a pledgee with power to sell at private sale in case of default. Bloxam v. Sanders, 4 B. & C., 941; Bloxam v. Morley, id., 951; Milgate v. Kobble, 3 M. &. G., 100; Audenreid v. Randall, 3 Cliff., 99, 106; Blackb. Sale, 2d ed., 445, 454, 459; Benj. Sales, Corbin’s ed., § 1280; Jones’ Liens, § 802.

The vendee having become insolvent and refused payment of the notes given for the purchase price of the property which remained in the vendor's possession, his right to retain it as security for the price was revived as against the vendee and his attaching creditor. Arnold v. Delano, 4 Cush., 33; Haskell v. Rice, 11 Gray, 240; Milliken v. Warren, 57 Me., 46; Clark v.. Draper, 19 N. H., 419; Bloxam v. Sanders, 4 B. & C., 941; Bloxam v. Morley, id., 951; Hamburger v. Rodman, 9 Daly, 93 Benj. Sales, Bennett’s ed., § 825; 2 id., Corbin’s ed., § 1227; Story Sales, § 285; Blackb. Sales, 454.

The plaintiffs allege in their complaint that they own the property and also that they “ had" a special property therein, to wit, a lien for unpaid purchase money,” both pf which allegations the-defendants specifically denied. It is now insisted, as it was at the-trial, by the defendants that the allegation in respect to the special property is not a compliance with § 1720 of the Code of Civil Procedure, which provides that when the right of action or defense rests upon a right of possession, by virtue of a special property; in which case, the pleading must set forth the facts upon which the special property depends, so as to show that at. the time when the action was commenced or the chattel replevied, as the case may be, the party pleading or the third person was-entitled to the possession of the chattel.” The defendants not having movedlo make the complaint more definite and certain, and it affirmatively appearing that they were neither harmed nor misled by the omission to set forth all of the facts out of which the special property arose, the judgment will not be reversed for this defect in the copaplaint.

When the trial began it was moved in behalf of the defendants that the plaintiffs be compelled to elect whether they would seek to recover on the ground that they owned the property or on the ground that they had a lien thereon for unpaid purchase money. To this request the court replied: “ I will hear the evidence first before I compel him to do that.” To this remark the defendants excepted. At the close of the plaintiffs’ case, the defendants offering no evidence, both parties asked the court to direct a verdict ; the motion to compel an election not being renewed. The object of requiring plaintiffs to elect between inconsistent causes of action is to simplify the issues of fact so that they may be intelligibly and fairly tried, but it is plain in this case that the defendants were not misled nor harmed by the refusal of the court to compel an election. The plaintiffs’ allegation that they owned the property and also had a lien thereon for unpaid purchase money were inconsistent. Hudson v. Swan, 83 N. Y., 552. But when, as in the case at bar, the inconsistency plainly appears on the face of the complaint, the defendants should, before answering, move that the plaintiffs be compelled to elect. Cassidy v. Daly, 11 W. Dig., 222. If in such a case the defendant lies by until the trial and then moves, the court may in its discretion wait until part or all of the evidence is taken before deciding the motion, Southworth v. Bennett, 58 M. Y., 659, and its denial is so far discretionary, Kerr v. Hays, 35 N. Y., 331, 336; People v. Tweed, 63 id., 194, that it will not be reviewed when it appears that the defendant was not harmed.

It is also urged on the authority of Hudson v. Swan, supra, and the cases therein cited, that the plaintiffs by alleging in their complaint and asserting at the trial absolute ownership of the property, and also a special interest in or lien upon it, waived their special interest or lien, if any they had, and cannot recover without establishing ownership. In the case cited the facte alleged by the plaintiff to establish ownership were inconsistent with those upon which he relied to establish a lien, which is not the fact in the case at bar. As has been shown, the plaintiffs’ interest was more than that of mere lienors, and there being no dispute about the facts, the inconsistency relating wholly to the legal conclusions to be drawn from the agreed facts, the case cited is not controlling.

The j udgment should be affirmed, with costs.

All concur, except Brown, J., not sitting.  