Judge McAdams Charge to the Jury,
Gentlemen :
This is what the law terms an action of trover for the conversion of certain stock ale.
The action was originally brought by Arthur A. Brown as plaintiff, and in consequence of an assignment made by him prior to his death (which occurred after the second trial of this action), it has been continued in the name of his wife as assignee of the cause of action, subject to all the rights and equities belonging or open to the original plaintiff. The.action has, as yon have already heard, been twice tried, has been twice before the general term of this court, twice before the general term of the court of common pleas, and once before the highest j udicial tribunal in the S tote— the court of appeals, at Albany. This circumstance neither adds to, nor takes from the rights of either of the litigants, and I refer to it simply because it gives an importance to the case which it might not other-, wise have obtained, and, therefore, invites at your hand a careful consideration to the end that the litigation may, if possible, be brought to .some satisfactory conclusion. I have adverted to these facts, for they form part of the history of the case, and are material [324] only in so far as they may tend to exact from yon the exercise of your patient, calm, deliberate and best judgment, in deciding and disposing of the questions involved, which I will endeavor to present in as clear and concise a manner as the nature and magnitude of the case will permit.
In the first place I charge you that before you can find for the plaintiff, you must be satisfied of two things :
First. That the property in dispute was taken by or through the agency of the defendants and by their direction.
Second. That at the time of the-taking, it belonged to and was owned by Mr. Arthur A. Brown, the original plaintiff.
If you find on these two propositions in favor of the jfiaintiff, you will then have to assess the damages sustained by the plaintiff’s assignor by reason of such wrongful taking, and these damages are" limited to the value of the property at the time of the taking, with lawful interest to the time of trial added thereto. But if, on the other hand, you find that at the time of the taking, the property did not belong to Mr. Arthur A. Brown, the original plaintiff, but that it belonged to Michael Healy, whose name you have heard mentioned in connection with it, you will find a verdict in favor of the defendants, without troubling yourself with the other questions involved, which hinge upon this question of title; because, if Mr. Brown was not the actual owner at the time of the alleged taking, the defendants cannot be called to account by him for any of their acts, and the plaintiff is without any cause of action. The defendants, in their answer, after denying any wrongful taking of the property by them, plead the recovery oí a judgment by them against the before-named Michael Healy in the first district court, the issuing of an execution thereon in due form to one [325] Contrell, a city marshal, and a levy by him as such marshal upon said property while in the possession of said Healy. If Healy had any leviable interest in the property, the marshal had a legal right to levy upon it, and the defendants, as the plaintiffs in the execution, incurred no liability by reason either of such levy, or the removal of the property under and by virtue of it. You will have perceived then that the main question involved in this controversy, which you are called upon to determine, therefore is, who owned the property taken at the time of the seizure and removal? Was the title to it and ownership of it in Brown or were they in Healy? If in Brown, the marshal had no right to seize it, and the- defendants are- liable, if tíiey directed him to take it. If in Healy, the marshal not only had the right, but it was his official duty under his execution to take it and dispose of it by sale in the usual manner, and, as I remarked before, the plaintiff —if the title was in Healy—has no cause of action • whatever.
This brings us directly to the question of title, and this problem requires some elucidation as to the facts, as well as to the law. The evidence shows that Arthur A. Brown, the original plaintiff, a brewer by occupation, delivered into the cellar of the said Michael Healy eighteen casks of stock ale, upon obtaining from Healy a receipt in these words, signed by Healy, and countersigned by the carman making the delivery :
“Brooklyn, May 1st, 1872.
“Received from the Long Island Brewery, Nos. 83, 85, 87 and 89 Third avenue (to remain the property of A. A. Brown, until paid for), eighteen casks of ale— stock.
“Mike Healy.
“ Michael Healy.
(Signed) “ Jonw Walsh, QarmanP
[326] It is conceded that the ale was brewed by the plaintiff, and that it was his property up to the time of the deposit in Healy’s cellar, and it is also conceded that Healy paid Brown nothing for the ale in dispute.
The defendants, who are judgment creditors of Healy, claim under this writing and the circumstances attending it, tho t Healy became the owner of the ale, and that they, as his judgment creditors, were justified in levying upon and selling it for the purpose of satisfying their judgment. The plaintiff, in explanation of the transaction with Healy, claims that fresh ale is manufactured, sold and used within a short time after being brewed, while ales like those delivered to Healy, required to be stored in some place until they became aged, or in other words, until they go through some chemical process, caused by their own action and the lapse of time, whereby they become seasoned and fit for use, and that this process occupies from six months to two years in bringing about the proper result. That to save the expense of storage room in his own premises, Brown availed himself of the opportunity afforded by retail dealers, of storing ales in their cellars or vaults until they became fit for use, and until an opportunity for a sale offered itself.
[How, if you find that these ales were merely left by Mr. Brown on storage in Healy’s cellar ; that they were not sold to Healy ; that Healy had no right to use the ales without first purchasing each cask, as he required it for his use; then it is clear that tíre transaction was what the law calls a bailment of the class known as deposituvi.~\ That is, a simple delivery or deposit of goods to be kept and returned without recompense, or, in the language of Judge Stout, “a delivery in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object of the trust.” If the transaction was merely sucha bailment, or, in other words, it was not a sale, then the plaintiff’s [327] assignor did not part with his title. The property was his when the marshal took it away, and the defendants are liable for his acts, if they directed him to take it.
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Judge McAdams Charge to the Jury,
Gentlemen :
This is what the law terms an action of trover for the conversion of certain stock ale.
The action was originally brought by Arthur A. Brown as plaintiff, and in consequence of an assignment made by him prior to his death (which occurred after the second trial of this action), it has been continued in the name of his wife as assignee of the cause of action, subject to all the rights and equities belonging or open to the original plaintiff. The.action has, as yon have already heard, been twice tried, has been twice before the general term of this court, twice before the general term of the court of common pleas, and once before the highest j udicial tribunal in the S tote— the court of appeals, at Albany. This circumstance neither adds to, nor takes from the rights of either of the litigants, and I refer to it simply because it gives an importance to the case which it might not other-, wise have obtained, and, therefore, invites at your hand a careful consideration to the end that the litigation may, if possible, be brought to .some satisfactory conclusion. I have adverted to these facts, for they form part of the history of the case, and are material [324] only in so far as they may tend to exact from yon the exercise of your patient, calm, deliberate and best judgment, in deciding and disposing of the questions involved, which I will endeavor to present in as clear and concise a manner as the nature and magnitude of the case will permit.
In the first place I charge you that before you can find for the plaintiff, you must be satisfied of two things :
First. That the property in dispute was taken by or through the agency of the defendants and by their direction.
Second. That at the time of the-taking, it belonged to and was owned by Mr. Arthur A. Brown, the original plaintiff.
If you find on these two propositions in favor of the jfiaintiff, you will then have to assess the damages sustained by the plaintiff’s assignor by reason of such wrongful taking, and these damages are" limited to the value of the property at the time of the taking, with lawful interest to the time of trial added thereto. But if, on the other hand, you find that at the time of the taking, the property did not belong to Mr. Arthur A. Brown, the original plaintiff, but that it belonged to Michael Healy, whose name you have heard mentioned in connection with it, you will find a verdict in favor of the defendants, without troubling yourself with the other questions involved, which hinge upon this question of title; because, if Mr. Brown was not the actual owner at the time of the alleged taking, the defendants cannot be called to account by him for any of their acts, and the plaintiff is without any cause of action. The defendants, in their answer, after denying any wrongful taking of the property by them, plead the recovery oí a judgment by them against the before-named Michael Healy in the first district court, the issuing of an execution thereon in due form to one [325] Contrell, a city marshal, and a levy by him as such marshal upon said property while in the possession of said Healy. If Healy had any leviable interest in the property, the marshal had a legal right to levy upon it, and the defendants, as the plaintiffs in the execution, incurred no liability by reason either of such levy, or the removal of the property under and by virtue of it. You will have perceived then that the main question involved in this controversy, which you are called upon to determine, therefore is, who owned the property taken at the time of the seizure and removal? Was the title to it and ownership of it in Brown or were they in Healy? If in Brown, the marshal had no right to seize it, and the- defendants are- liable, if tíiey directed him to take it. If in Healy, the marshal not only had the right, but it was his official duty under his execution to take it and dispose of it by sale in the usual manner, and, as I remarked before, the plaintiff —if the title was in Healy—has no cause of action • whatever.
This brings us directly to the question of title, and this problem requires some elucidation as to the facts, as well as to the law. The evidence shows that Arthur A. Brown, the original plaintiff, a brewer by occupation, delivered into the cellar of the said Michael Healy eighteen casks of stock ale, upon obtaining from Healy a receipt in these words, signed by Healy, and countersigned by the carman making the delivery :
“Brooklyn, May 1st, 1872.
“Received from the Long Island Brewery, Nos. 83, 85, 87 and 89 Third avenue (to remain the property of A. A. Brown, until paid for), eighteen casks of ale— stock.
“Mike Healy.
“ Michael Healy.
(Signed) “ Jonw Walsh, QarmanP
[326] It is conceded that the ale was brewed by the plaintiff, and that it was his property up to the time of the deposit in Healy’s cellar, and it is also conceded that Healy paid Brown nothing for the ale in dispute.
The defendants, who are judgment creditors of Healy, claim under this writing and the circumstances attending it, tho t Healy became the owner of the ale, and that they, as his judgment creditors, were justified in levying upon and selling it for the purpose of satisfying their judgment. The plaintiff, in explanation of the transaction with Healy, claims that fresh ale is manufactured, sold and used within a short time after being brewed, while ales like those delivered to Healy, required to be stored in some place until they became aged, or in other words, until they go through some chemical process, caused by their own action and the lapse of time, whereby they become seasoned and fit for use, and that this process occupies from six months to two years in bringing about the proper result. That to save the expense of storage room in his own premises, Brown availed himself of the opportunity afforded by retail dealers, of storing ales in their cellars or vaults until they became fit for use, and until an opportunity for a sale offered itself.
[How, if you find that these ales were merely left by Mr. Brown on storage in Healy’s cellar ; that they were not sold to Healy ; that Healy had no right to use the ales without first purchasing each cask, as he required it for his use; then it is clear that tíre transaction was what the law calls a bailment of the class known as deposituvi.~\ That is, a simple delivery or deposit of goods to be kept and returned without recompense, or, in the language of Judge Stout, “a delivery in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object of the trust.” If the transaction was merely sucha bailment, or, in other words, it was not a sale, then the plaintiff’s [327] assignor did not part with his title. The property was his when the marshal took it away, and the defendants are liable for his acts, if they directed him to take it.
Although the receipt or contract signed by Healy does not in express terms authorize a sale or use of the ales by Healy, the transaction, as had between Brown upon the one hand, and Healy upon the other, is nevertheless open to all evidence showing or tending to prove its true character and purpose. The defendants are judgment creditors of Healy, and are not to be concluded by forms or writing, and are at liberty to show the truth, whatever it may be, respecting the transaction in question. The defendants have availed themselves of this liberty, and have attempted to attack the transaction as a fraud upon them and the creditors of Healy generally, and claim that the writing exacted from Healy was an attempt to hinder, delay and defraud creditors, and to cover up and conceal the true title ; so that while the property was practically Healy’s for every other purpose, it was to be Brown’s for the purpose of keeping off Healy’s creditors You are to find whether the defendants have succeeded in proving this defense or not. If they have, they are entitled to your verdict. The defendants also claim that Healy was a retail dealer, and had the right, under his contract with Mr. Brown, to retail this ale over the counters of his store ; that it was to form part of his stock in trade, as a retail dealer, and was to be retailed and drank over his bar. If you find this to be the fact, the defendants will be entitled to your verdict, because any such right in Healy to sell and dispose of the ale at pleasure, is inconsistent with an outstanding title in any one else. Mr. Brown could not permit Mr. Healy to deal with the property as his own, to retail it at pleasure to his customers ; and at the same time to retain his title to it; the existence of two. such conflicting rights is incompatible and impossible. If the ales were Brown’s, then [328] Healy had no right to use them as his own. If they were Healy’s, Brown had no title to them. You will have observed, therefore, that the question, whether the title was in Brown or in Healy, depends upon a very fine distinction, which, although perhaps difficult to understand on first impression, nevertheless exists in this case, either in favor of, or against Brown, according to your finding of the facts. [If you find that Mr. Healy had no right to use any cask of ale without first purchasing' or ordering such cask, of without first obtaining the liberty tif using the contents of such cask, the purchase, the ordering or the use of such cask, under such circumstances, would not divest Brown of any title he had to the remaining casks, unless he had by his previous acts or conduct disposed of them.] I mean to be understood as saying, that if, notwithstanding the fact that the ales were stored in Healy’s cellar, you find that he had no right, under his agreement with Brown, to use even a single cask without special permission, that the obtaining of such permission to use one cask would not extend to all, if such construction was contrary to the understanding and intent of the parties. One way, perhaps, of ascertaining the relative positions of Healy and Brown, in respect to these ales, is to consider whether, if Brown, after putting the ales into Healy’s cellar, had the right under his agreement, to go there at any time afterwards and take them away. If he had, that may have a tendency to show that he had not parted with all his right to them. While, on the other hand, if he had no such right, that would have the opposite tendency of showing that he had no title left.
. In order to avoid any question as to the law, I propose to -read it directly from the'books, giving the volume and page, so that the counsel may understand intelligently whether to find fault with it or not. In Herring v. Hoppock, 15 N. Y. 409, which was an action [329] for the conversion of an iron safe, delivered under a conditional sale contract, the court of appeals, according to the syllabus of the case, held as follows: “ When a chattel is delivered to one who has bargained for the purchase thereof, and agreed at pay therefor at a 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.” The above rule was applied to a safe.
The following rule was applied by the court of appeals to a consignment (Cole v. Mann, 62 N. Y. 1): ‘‘ Where the owner of the property consigns it to another, under an agreement that, when paid for, it shall become the property of the consignee, the title does not pass to the latter until the condition is complied with, and it is not liable to levy and sale under execution against him.”
So much for this general rule; now let me give you another. Chief Justice Tilghmah, in Martin v. Mathot, 14 Serg. & R. 215, says : 1 ‘ Possession of personal property is the great mark of ownership. It is almost the only index which the world in general has to look to. But there are exceptions. There are certain necessary and lawful contracts by which the owner parts with the possession, and yet fraud cannot be presumed. Such as the contracts of lending and hiring, both very useful, and without which society could not well exist. It is of the essence of these, that the owner should give up the possession for a time. Such too are contracts by which an artisan or manufacturer has the possession of materials belonging to another for the purpose of making them up, or repairing them for the owner. No suspicion of fraud can fairly arise Avhere the transaction is in the usual course of business. But the case is very different where it is intended that the property should be apparently in one, Avhile it is, in fact, in an[330] other. This is out of the usual course of business, unnecessary, and directly tending to the injury of those who are not in the secret-.”