F. J. NELSON, Respondent,
CHARLES B. GIBSON, Appellant.
APPEAL by the defendant, Charles B. Gibson, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Washington on the 14th day of November, 1910, denying the defendant's motion for the dismissal of the complaint upon the pleadings.
David S. Fisk and L. R. Lewis, for the appellant.
Fred A. Bratt, for the respondent.
The plaintiff in his complaint alleges that on February 8, 1908, he sold to one Shaw a team of mares and harness for $650. Shaw paid $125 thereon and gave his note, dated February 8, 1908, for $525 balance, payable two months after date. The note recited that it was given for the purchase price thereof, and contained this provision: 'And it is expressly agreed that no title to said property, for which this note is given, shall pass from F. J. Nelson until this note is fully paid.' That he then and there delivered the said mares and harness to said Shaw. On April 4, 1908, the complaint alleges, Shaw sold and delivered the said mares and harness to the defendant Gibson, subject to the said note and claim of plaintiff, which said note and claim the defendant then and there assumed, and agreed with said Shaw to pay to the plaintiff as a part of the consideration for the sale and delivery of the property as aforesaid, as plaintiff is informed and believes, and on the same day defendant again assumed the payment of said note and claim,
and promised and agreed with the plaintiff that he would pay the same to him. Upon the note becoming due and payable, plaintiff demanded payment thereof from the defendant, which was refused. The complaint further continues: 'That on or about the 13th day of April, 1908, plaintiff caused said pair of black mares and set of team harness then in the possession of the defendant to be seized and advertised for sale * * * on the 21st day of April, 1908; ' notices of such sale were duly posted on April thirteenth, and due and timely notice given to defendant; plaintiff caused the mares and harness to be exposed for sale, and they were sold for the sum of $450--that being the best price obtainable and the highest sum bidden therefor. The sale was conducted by a deputy of the sheriff of Washington county, and his fees and expenses, amounting to $21.50, added to the amount of the note and interest, and deducting $450 therefrom, leaves a balance of $102.88, for which plaintiff demands judgment. The answer of the defendant, so far as material here, is a denial, and contains an allegation that the said mares and harness were left with him for sale by Shaw on April 4, 1908, with the request for the defendant to dispose of the same provided said defendant could obtain enough for said Shaw by any means to net said Shaw any amount over and above a lien which said Shaw claimed one Nelson held on said property. Then and there Shaw agreed to call for and take away said property on April 8, 1908, in case no favorable sale was made, but that Shaw failed to take them away, and defendant notified Nelson and asked him to come and remove the same, which Nelson failed to do except as the deputy sheriff took them on presentation of a notice of sale and demand. Upon these pleadings the defendant made a motion at Special Term for the dismissal of the complaint herein, and for an order directing the entry of judgment in favor of the defendant upon the pleadings, which motion was denied, and defendant appeals.
Prior to the enactment of the Lien Law or Personal Property Law hereinafter to be referred to it was the law that when a chattel is delivered to one who has bargained for the purchase thereof and agreed to pay therefor at future day under an express contract that no title is to vest in him until payment, the property of the vendor is not divested and the purchaser takes at most only a right by implication to the use of the chattel until default in the stipulated payment.
So held in favor of a vendor as against a creditor of a vendee who had caused a levy to be made upon a chattel in possession of said vendee, it appearing that the sheriff had notice of the plaintiff's title previous to the sale. ( Herring v. Hoppock, 15 N.Y. 409.) (See, also, Ballard v. Burgett, 40 N.Y. 314, where it is held that a bona fide purchaser of personal property, although from one who has the possession, acquires no better title than that of his vendor, where a purchaser under much the same circumstances as the case here sold the chattel to the defendant for the full price and who bought in good faith without notice of the plaintiffs' rights.) It was further held that the defendant acquired no title as against the plaintiffs, the vendors.
In this case Shaw had a contract for conditional sale only and manifestly he could give no better title to the defendant than he possessed himself. The action here is not brought upon any sale by the plaintiff to the defendant for none is pleaded, but upon the sale of Shaw to the defendant and defendant's agreements made with Shaw and made with the plaintiff concerning payment of the notes. (See, also, Austin v. Dye, 46 N.Y. 500.)
The transfer from Shaw to the defendant did not materially change the nature of the transaction. The plaintiff was still the owner of the mares and the harness. He had no lien thereon for the reason that a person could not, prior to the Lien Law at least, have a lien upon his own property. In Earle v. Robinson (91 Hun, 363, 370; affd., 157 N.Y. 683, upon the opinion of the court below), which is a case very similar to this, the purchaser had taken possession of the property under an agreement that it was to remain the seller's until paid for and given notes in partial payment therefor Later on the notes given for the payment of the property not being met, the original sellers took possession of the property under the original contract to sell the same, sold the property and then desired to hold the original purchaser for the amount of the notes in addition to having taken away the property. The court held that where there has been a sale of goods with a precedent condition that the title shall ...