Mr. Chief Justice Shepard
delivered the opinion of the Court:
1. The learned trial justice was unquestionably right in holding that the evidence tended to show a mere consignment of the goods to Hekimian & Company for sale on the plaintiffs’ account. There was no sale, conditional or otherwise. No title passed from the plaintiffs. Hekimian & Company were their factors or agents for sale in the manner directed, and nothing [426]*426more. Sturm v. Boker, 150 U. S. 312, 326, 37 L. ed. 1093, 1099, 14 Sup. Ct. Rep. 99.
2. Having possession of the goods as factors and agents of the plaintiffs, Hekimian & Company had no authority to pledge them for a debt of their own, or for advances made to them; and it is of no consequence in such event that the pledgee may have been ignorant of the fact that the pledgeors were not the owners of the goods. Warner v. Martin, 11 How. 209, 224, 13 L. ed. 667, 673; Allen v. St. Louis Nat. Bank, 120 U. S. 20, 32, 30 L. ed. 573, 575, 7 Sup. Ct. Rep. 460.
3. Assuming that the statute of New York, as contended on behalf of the appellee, changes the rule of the common or general mercantile law, above stated, and extends protection to an innocent pledgee, we are of the opinion that it cannot govern the rights of the parties in this case. The question is not one of the construction of a contract in the light of the law of the place where made, but of the operation of a positive rule of law in another jurisdiction. Whilst the agreement between the plaintiffs and Hekimian & Company, in regard to the meaning of which there is no uncertainty, was made in New York, the goods were shipped to the District of Columbia, to be disposed of there. Sloan & Company were no parties to that contract. Their relations with the agents, Hekimian & Company, commenced in the District of Columbia, after the arrival of the goods there. The law of New York governs bailors and bailees, principals and agents in that State, and can have no operation upon the relations and rights of such persons in the District of Columbia. These must necessarily be determined by the local law.
5. The testimony offered to show the custom and usage of auctioneers in the District of Columbia, as regards advances made to persons delivering goods to them to be sold at auction, is entitled to no weight in so far as such usage is relied upon to alter or abrogate the prevailing rule of law. A general custom or usage of trade may be available to ascertain or explain the meaning of a contract where the parties may be presumed to have contracted with reference to it, but it cannot be per[427]*427mitted to alter or subvert settled rules of law. No aid can be derived from it when contrary to the settled law. Barnard v. Kellogg, 10 Wall. 383, 390, 19 L. ed. 987, 989; Allen v. St. Louis Nat. Bank, 120 U. S. 20, 39, 30 L. ed. 573, 578, 7 Sup. Ct. Rep. 460.
5. It was not within the scope of the agency of Hekimian & Company to consign plaintiffs’ goods to other sales agents for disposition at auction. But, having’done so with the knowledge and acquiescence of plaintiffs, as admitted by witness Costikyan, in respect of all but the last shipment, this was a ratification, to that extent, of the acts of the agents; and, in the absence of notice to the contrary, Sloan & Company had the right to assume that the last delivery for sale at auction was within the scope of the agency.
Knowing that their goods were being delivered to the auctioneers for sale, and acquiescing therein, plaintiffs are chargeable with notice that there would be charges ordinarily incidental thereto, and that the auctioneers would be entitled to a lien therefor upon the proceeds of sales. Acquiescing in, and thereby ratifying, the action of their agents in employing the services of the auctioneers, they cannot escape the liability of their goods to the extent of the auctioneers’ lien.
6. Bearing in mind, also, the well-settled boundary between the province of court and jury, respectively, it remains to apply the foregoing rules of law to the facts that have been recited, in order to determine whether the court erred in directing the verdict for the defendants Sloan & Company.
Without undertaking to analyze the account rendered by Sloan & Company against Hekimian & Company, or to discuss its items, it is sufficient to say that it will require additional testimony to show what charges for expenses and advances of money apply particularly to the specific items of merchandise involved in this action. In the first place, it was stated on the argument that there are several other similar actions by other plaintiffs claiming to be the owners of like goods that had been delivered during the same period by Hekimian & Company to Sloan & Company. If Sloan & Company were entitled to retain [428]*428all of the goods deposited with them by Hekimian & Company, of whatever ownership-, for the enforcement of their account for money advances as well as for incidental expenses, this lien ought to be apportioned among the several owners. Goods belonging to Hekimian & Company would first be liable, and any deficit thereafter should be borne by the other owners of the goods, in proper proportion. This, of course, could only be accomplished in a court of equity. But the action is at law by each claimant separately. Replevin is ordinarily a possessory action, yet the title may be put in issue and determined. As the general issue is the plea provided by the Code, both the right of possession and of property may be raised thereunder. It is true that, under the proof, Sloan & Company make no claim of title, but only the right of possession until their charges shall have been paid. At the same time, the plaintiffs cannot recover, under any circumstances, unless they show a title to the property as against Hekimian & Company. Under the evidence submitted, it appears that Hekimian & Company do not, in fact, claim title as against the plaintiffs to the articles described in the declaration.
The ratification of the acts of Hekimian & Company in depositing the goods with Sloan & Company for sale at auction rendered them, as we have seen, liable to the charges of Sloan & Company on the several items thereof to the extent-of the ordinary auctioneers’ charges actually incurred. But plaintiffs’ goods cannot be subjected to any lien or claim for charges created by the secret contract between Sloan & Company and Hekimian & Company, which was not made public until the trial. Nor can Sloan & Company’s right to retain possession of the plaintiffs’ goods be extended to the money advanced to Hekimian & Company on the same, under the belief that they were the owners, for, as before stated, Hekimian & Company had no authority to pledge the goods for a loan to themselves, whether Sloan & Company, at the time, had or had not notice of the plaintiffs’ superior title. Sloan & Company, supposing that Hekimian & Company were the owners of the goods, advanced the money to them, and not for, or on account of, the [429]*429plaintiffs.
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Mr. Chief Justice Shepard
delivered the opinion of the Court:
1. The learned trial justice was unquestionably right in holding that the evidence tended to show a mere consignment of the goods to Hekimian & Company for sale on the plaintiffs’ account. There was no sale, conditional or otherwise. No title passed from the plaintiffs. Hekimian & Company were their factors or agents for sale in the manner directed, and nothing [426]*426more. Sturm v. Boker, 150 U. S. 312, 326, 37 L. ed. 1093, 1099, 14 Sup. Ct. Rep. 99.
2. Having possession of the goods as factors and agents of the plaintiffs, Hekimian & Company had no authority to pledge them for a debt of their own, or for advances made to them; and it is of no consequence in such event that the pledgee may have been ignorant of the fact that the pledgeors were not the owners of the goods. Warner v. Martin, 11 How. 209, 224, 13 L. ed. 667, 673; Allen v. St. Louis Nat. Bank, 120 U. S. 20, 32, 30 L. ed. 573, 575, 7 Sup. Ct. Rep. 460.
3. Assuming that the statute of New York, as contended on behalf of the appellee, changes the rule of the common or general mercantile law, above stated, and extends protection to an innocent pledgee, we are of the opinion that it cannot govern the rights of the parties in this case. The question is not one of the construction of a contract in the light of the law of the place where made, but of the operation of a positive rule of law in another jurisdiction. Whilst the agreement between the plaintiffs and Hekimian & Company, in regard to the meaning of which there is no uncertainty, was made in New York, the goods were shipped to the District of Columbia, to be disposed of there. Sloan & Company were no parties to that contract. Their relations with the agents, Hekimian & Company, commenced in the District of Columbia, after the arrival of the goods there. The law of New York governs bailors and bailees, principals and agents in that State, and can have no operation upon the relations and rights of such persons in the District of Columbia. These must necessarily be determined by the local law.
5. The testimony offered to show the custom and usage of auctioneers in the District of Columbia, as regards advances made to persons delivering goods to them to be sold at auction, is entitled to no weight in so far as such usage is relied upon to alter or abrogate the prevailing rule of law. A general custom or usage of trade may be available to ascertain or explain the meaning of a contract where the parties may be presumed to have contracted with reference to it, but it cannot be per[427]*427mitted to alter or subvert settled rules of law. No aid can be derived from it when contrary to the settled law. Barnard v. Kellogg, 10 Wall. 383, 390, 19 L. ed. 987, 989; Allen v. St. Louis Nat. Bank, 120 U. S. 20, 39, 30 L. ed. 573, 578, 7 Sup. Ct. Rep. 460.
5. It was not within the scope of the agency of Hekimian & Company to consign plaintiffs’ goods to other sales agents for disposition at auction. But, having’done so with the knowledge and acquiescence of plaintiffs, as admitted by witness Costikyan, in respect of all but the last shipment, this was a ratification, to that extent, of the acts of the agents; and, in the absence of notice to the contrary, Sloan & Company had the right to assume that the last delivery for sale at auction was within the scope of the agency.
Knowing that their goods were being delivered to the auctioneers for sale, and acquiescing therein, plaintiffs are chargeable with notice that there would be charges ordinarily incidental thereto, and that the auctioneers would be entitled to a lien therefor upon the proceeds of sales. Acquiescing in, and thereby ratifying, the action of their agents in employing the services of the auctioneers, they cannot escape the liability of their goods to the extent of the auctioneers’ lien.
6. Bearing in mind, also, the well-settled boundary between the province of court and jury, respectively, it remains to apply the foregoing rules of law to the facts that have been recited, in order to determine whether the court erred in directing the verdict for the defendants Sloan & Company.
Without undertaking to analyze the account rendered by Sloan & Company against Hekimian & Company, or to discuss its items, it is sufficient to say that it will require additional testimony to show what charges for expenses and advances of money apply particularly to the specific items of merchandise involved in this action. In the first place, it was stated on the argument that there are several other similar actions by other plaintiffs claiming to be the owners of like goods that had been delivered during the same period by Hekimian & Company to Sloan & Company. If Sloan & Company were entitled to retain [428]*428all of the goods deposited with them by Hekimian & Company, of whatever ownership-, for the enforcement of their account for money advances as well as for incidental expenses, this lien ought to be apportioned among the several owners. Goods belonging to Hekimian & Company would first be liable, and any deficit thereafter should be borne by the other owners of the goods, in proper proportion. This, of course, could only be accomplished in a court of equity. But the action is at law by each claimant separately. Replevin is ordinarily a possessory action, yet the title may be put in issue and determined. As the general issue is the plea provided by the Code, both the right of possession and of property may be raised thereunder. It is true that, under the proof, Sloan & Company make no claim of title, but only the right of possession until their charges shall have been paid. At the same time, the plaintiffs cannot recover, under any circumstances, unless they show a title to the property as against Hekimian & Company. Under the evidence submitted, it appears that Hekimian & Company do not, in fact, claim title as against the plaintiffs to the articles described in the declaration.
The ratification of the acts of Hekimian & Company in depositing the goods with Sloan & Company for sale at auction rendered them, as we have seen, liable to the charges of Sloan & Company on the several items thereof to the extent-of the ordinary auctioneers’ charges actually incurred. But plaintiffs’ goods cannot be subjected to any lien or claim for charges created by the secret contract between Sloan & Company and Hekimian & Company, which was not made public until the trial. Nor can Sloan & Company’s right to retain possession of the plaintiffs’ goods be extended to the money advanced to Hekimian & Company on the same, under the belief that they were the owners, for, as before stated, Hekimian & Company had no authority to pledge the goods for a loan to themselves, whether Sloan & Company, at the time, had or had not notice of the plaintiffs’ superior title. Sloan & Company, supposing that Hekimian & Company were the owners of the goods, advanced the money to them, and not for, or on account of, the [429]*429plaintiffs. So far as the evidence goes, they do not pretend, nor could they do so, in the light of their defense of want of notice of plaintiffs’ title, that they advanced the money to or for the plaintiffs. For a stronger reason, the goods in this case could not be subjected to claims for advances to Hekimian & Company, prior to their receipt by Sloan & Company, or to a genera] balance due by Hekimian & Company on account of charges for goods formerly sold, and the money advanced thereon.
We are of the opinion that the case should have been submitted to the jury upon a charge defining the rights of the parties as hereinabove declared. The jury should, in other words, have been charged that the plaintiffs were entitled to recover possession of the goods in controversy, unless they should find from the evidence that there were actual auctioneers’ charges, as heretofore defined, against the particular goods.
On account of the complexity of the account, covering, as it does, a series of transactions between Sloan & Company and Hekimian & Company, it would be advisable to submit the case upon special issues, one of which should require a finding of the exact sum, if any, chargeable for the auctioneers’ expenses incurred on account of the particular goods in controversy. If there be any such charge, Sloan & Company would be entitled to retain the possession of the goods as against the plaintiffs. But, when so ascertained, plaintiffs could reclaim their goods upon its payment or tender.
For these reasons the judgment will be reversed, with costs, and the case -remanded for a new trial not inconsistent with this opinion. Reversed.
On June 3, 1909, the appellee submitted a motion for a rehearing or a modification of the opinion, on the ground, among others, that the evidence at the trial, as shown by the record, was conflicting as to whether the appellants had actual notice during the time they were shipping rugs to Hekimian & Company that the latter was obtaining loans from the appellee on such rugs, and that, if they did have such notice, that fact, on [430]*430the new trial directed by this court, should be submitted to the jury-
On June 4, 1909, the petition was denied, Mr. Chief Justice Shepard delivering the opinion of the Court:
As the verdict was directed in the court below, the case depended solely upon the sufficiency of the plaintiffs’ evidence. We have held that the case should have been submitted to the jury. Because of the complicated nature of the account for money advanced, charges, and expenses, it has been deemed proper to suggest the submission of special issues upon another trial. The opinion in this ease is confined to determining the issue presented on the order directing the verdict, and to settling questions of law suggested. The motion for rehearing is overruled.