Dodworth v. Jones

11 Duer 201

• Court: The Superior Court of New York City
• Decided: January 27, 1855
• Status: Published

Opinion

By the Court.

Campbell, J.

The plaintiff cannot recover in .this action, without proving that he was entitled to the..possession of the plates at the time it was commenced.

They were made by defendant’s firm out of. materials belonging to it, and by'labor furnished by it.. The title to this product was in the firm "on the completion of the plates, and would remain in- it,' until the firm made a delivery of the plates which, was accepted.

A mere tender of the contract price, or where that was not stipulated, of a fair compensation for the. materials and labor employed in making the plates, could not divest the legal title of defendant’s firm.

What remedies might be taken by the plaintiff to prevent a use of tbe plates by defendant’s firm, if it should attempt to print tbe book, it is unnecessary to discuss.

In tbe present action, tbe plaintiff, in order ‘to recover, must establish a legal title to tbe plates, or a special property in them, with tbe right of actual possession, at tbe time it was commenced.

It is clear that be has done neither, unless tbe tender which was made, but which was not accepted, bad tbe effect to divest tbe defendant’s firm of their title, and to transfer it to tbe plaintiff.

In our judgment, no such results were produced by it, and tbe verdict must be set aside, and a new trial granted, with costs to abide tbe event. •