Albert v. Lindau

46 Md. 334, 1877 Md. LEXIS 51

Opinion

Miller, J.

delivered the opinion of the Court.

The appellee, Lindau, sued the appellant, the Sheriff of Baltimore City, in trover, for seizing, carrying away and Converting to his own use a lot of wines and liquors, and a horse and wagon alleged to he the property of the plaintiff. It appears from the record, the sheriff seized these goods and chattels under executions on certain judgments, against William B. Lipper, recovered in March, 1871. The levy was made on or about the 5th of October, 1874, and the property was sold hy the sheriff after due advertisement on the 22nd of that month. The plaintiff claimed the horse and wagon under a bill of sale thereof to him from Lipper dated the 26th of May, 1870, and duly recorded two days thereafter. Just prior to the levy of these executions this hill of sale had been decreed to be a mortgage, to secure the consideration of $300 therein expressed by the Circuit Court of Baltimore City, upon a bill filed by these judgment creditors against Lindau, Lipper and others for the purpose of having the same, with other conveyances made by Lipper, set aside as fraudulent and void as against his creditors. The other goods the plaintiff claimed under a private contract or agreement between Lipper and himself dated the 27th of August, 1873, which we shall notice more particularly hereafter.

1st. As to that part of the -case which relates to the horse and wagon, we find no substantial error in the rulings which the Superior Court gave on that subject. The evidence shows that after the hill of sale was executed, Lindau allowed Lipper, at the latter’s request, to change horses and have another instead of the one mentioned in the bill of sale, because the latter shied and would not go near a locomotive, and that Lindau received, and for a time, used this horse, but this exchange was afterwards revoked, and Lipper again received from Lindau the horse mentioned in the bill of sale, and had him in possession at the time he was seized by the sheriff. In granting the plaintiff’s first prayer the Court instructed the jury, that if they found that the horse mentioned in the bill of sale was re-transferred to Lindau, then the lien thereon credited by the bill of sale was lost, but if they found this substitution of horses was only an exchange of use, then such exchange does not impair the plaintiff’s right to recover. If the jury under this instruction found, as by their verdict, it appears they did, that this transaction was a mere temporary exchange of the use of these two horses, it is clear the appellant has no cause of complaint, for there is no principle of law which declares that if a mortgagee of a chattel, temporarily uses it with the assent of the mortgagor and then returns it to him, the mortgage lien upon it is thereby extinguished. Nor was the appellant injured by the granting of the plaintiff’s second prayer, by which the jury were instructed they must exclude from their consideration, all evidence in reference to the invalidity of the bill of sale, and that the same is valid as a mortgage for the amount due thereunder. ' Outside of the proceedings and decree in the equity cause, there is nothing to show that this instrument was other than an absolute conveyance as it purports to he on its face. By treating it as a mortgage the appéllant derived the benefit of a credit thereon, which he would not otherwise have been entitled to claim. Again conceding the position taken in the appellant’s eleventh prayer, that if the payments made by Lipper to Lindau were not specifically appropriated by either of them, the law will appropriate them first to the amount due on the mortgage to he correct. Still there must he some testimony tending to show, that no such appropriation had been made by the parties themselves. But the evidence is all the other way, and shows that the $75 was paid on account of the horse and wagon, and that the other payments were made on account of the goods. 'For these reasons we find no error in the Court’s action upon the plaintiff’s first and second, and the defendant’s sixth and eleventh prayers.

2nd. The contract under which the plaintiff claims the other goods sold by the sheriff, is in writing, signed by both parties thereto, and is as follows :

“ This agreement made this 27th day of August, 1873, by and between Joseph Lindau and William B. Lipper, both of the City of Baltimore and State of Maryland: Whereas, the said William B. Lipper is desirous of carrying on and conducting the retail liquor business at 51 East Lombard street in said city, hut is unable to do so because of his inability to furnish stock and capital necessary in said business: and whereas, said Lipper is without means of his own, and the said Lindau has consented to aid liim upon the terms and conditions hereinafter named. Now this agreement witnesseth that the said Joseph Lindau agrees to furnish and deliver to said Lipper, as his agent, all such liquors, wines, &c., which he may require in the said business at the usual wholesale prices so long as it shall be agreeable for him to do so, and said Lipper shall faithfully comply with this agreement. It is expressly understood and agreed however, that said Lipper shall conduct and carry on said business only as the agent of said Lindau, and the stock in trade furnished as aforesaid shall be and remain the absolute property of the said Lindau, and that all goods shall be sold for and on- account of said Lindau, and all bills for goods sold shall be made out in the name of said Lipper, as agent aforesaid and in no other manner ; and said Lipper shall account to said Lindau at least once a month, for all goods delivered to him under this agreement, and shall pay over the wholesale price of such goods, and retain for his labor and attention in said business such profits as shall be made.”

There are some features in this instrument of an unusual character, and tending to arouse suspicion as to its tona fides, but we cannot pronounce it void on its face. It is in substance an agreement by which Lindau, who appears to have been a wholesale liquor dealer, was to furnish a stock of goods to Lipper, in order to enable the latter to carry on a retail liquor business, as agent for the former, with power to sell the goods for and on account of his principal. The agent was required to render monthly accounts of the goods delivered to him under the agreement, and sold by him, and to pay over to his principal the wholesale price thereof, and instead of being paid for his services in the usual way, by a salary or commissions on sales, the agent was authorized to retain for his labor and attention in the business, what profits he could make by selling at retail. Parties have the right to contract as they please, if their contracts be not condemned by the law as against good morals, or in contravention of public policy, and we know of no legal principle, which would make void an agreement like this, if executed and carried out in good faith. Upon the assumption that it was so executed, and was thus being carried out, and that the goods levied on by the sheriff, at the instance of these judgment creditors, were duly furnished under it, and were in the store unsold at the time of the levy, we see no reason why he should not be made responsible for seizing and selling them. It must be remembered that these creditors had recovered their judgments more than two years before this agreement was entered into, and, therefore, could not possibly have trusted Lipper, by reason of his possession and apparent ownership of these goods. The case would be quite different, with respect to subsequent creditors, who might be fairly presumed to have been misled by the false credit which such possession and ownership might give. We are, therefore, of opinion there was no error in the granting of the plaintiff’s third prayer. The law of that instruction is, that if the jury find the execution of this agreement, and that Lipper was carrying on business thereunder with the goods of Lindau, at the time this levy was made, and the sheriff had notice of this fact, and notwithstanding the same, seized and sold the goods so belonging to Lindau, then the plaintiff is entitled to recover the value of these goods, provided the same does not exceed the amount owing to him by Lipper under the agreement, with interest in the discretion of the jury. In this aspect of the case, and in view of the granting of this instruction, the Court was right in rejecting the defendant’s fourth, fifth, ninth and tenth prayers. The question argued at bar, as to an intermixture of the goods obtained from, Lindau, with those belonging to Lipper, and which he had obtained from other sources, is not presented by any of the defendant’s prayers, and even if it were, we find in the record no evidence that such goods had been so intermingled, as to be incapable of separation and identification.

But in our opinion, there is another view to be taken of this branch of the case. If these goods were in .fact sold to Lipper on credit, instead of being entrusted to him for sale as agent, or if the agreement referred to was merely colorable, not made in good faith, and was intended to be used for the purpose of protecting property which was actually sold to and belonged to Lipper from his creditors, under the guise of an agency, then we think it is quite clear the goods could be seized on execution, both by his antecedent and subsequent creditors. Thus, if the facts were, as stated in the defendant’s third prayer, that Lindau delivered the goods in the store to Lipper, at a fixed price, being the wholesale market price for such goods at the time of dealing, and charged the >same to Lipper on his books, and authorized Lipper to sell and dispose of them as if they were his own, and that Lipper was to receive all the profits of such sales, and was to sustain all losses arising therefrom, or which might be incurred by injury to or destruction of the goods, and was not to receive any commissions or salary, and was never required to account for such sales, nor to render any account of the same from time to time, except that he was simply to pay for the goods, the price charged on the books of Lindau, (the same being the wholesale price of the same,) and in the bills for the goods sent to Lipper by Lindau, at the time of delivering the same, and that said bills so rendered, were in the ordinary form of sale bills, made out to a purchaser of goods, then in our judgment, there was in effect a waiver or abandonment of the agency contract, and the protection it would otherwise have afforded to Lindau’s asserted ownership of the goods, and constituted- in law a sale of them on credit, accompanied by delivery. Where all the elements of such a sale exist, it cannot be made anything else by calling it by a different name. We are, hence of opinion, that upon the finding of these facts hy the jury, the plaintiff could have no cause to complain of the conclusion of law stated in this third prayer, viz., that such dealings and transactions between these parties in law, constitute, not the relation of principal and agent, hut that of seller and buyer, so far as creditors of Lipper are concerned, and this arrangement, (which we understand to mean the course of dealing, and the facts above stated, and not the written contract of agency,) as to such creditors is a sale of the goods to Lipper, and vests the property in them in him, and renders them liable to be taken on execution for his debts. So, again, if the jury found the other facts stated in the defendant’s second prayer, and that the contract with Lipper was merely colorable, not made in good faith, hut intended to conceal the property from his creditors, in order to deprive them of his future earnings; we think the plaintiff cannot com-' plain of the legal conclusions stated in that prayer. There is evidence in the record, (as to the weight of which we of course express no opinion,) legally sufficient to submit to the jury, the finding -of the facts stated in these two instructions, and in our judgment, it was error to reject them. We are also of opinion, from all that the record discloses, that the defence as to these goods, if it can be made out at all, must rest upon the facts and legal propositions contained in these two prayers, and that there was no error in rejecting any of the others offered on the part of the defendant. An additional, and also fatal objection to the defendant’s seventh prayer is, that it connects the horse and wagon with the goods, whereas the plaintiff’s title to the former rests upon the recorded bill of sale, and we have shown that that title is open to none of the objections that have been urged against the title to the goods.

The exception to the ruling on the admissibility of evidence contained in the first exception, is not noticed in the brief of tbe appellant's counsel, nor was it referred to in tbeir oral argument at bar. We shall therefore treat it as having been properly abandoned.

(Decided 7th March, 1877.)

Judgment reversed, and neto trial awarded.