Dows v. Dennistoun

28 Barb. 393, 1858 N.Y. App. Div. LEXIS 155

• Court: New York Supreme Court
• Decided: September 20, 1858
• Status: Published

Opinion

By the Court, Davies, P. J.

It is not controverted in this case, that the defendants were not bona fide holders or purchasers of the bills of lading or exchange. They have paid nothing therefor, nor parted with any thing of value upon the faith thereof. They stand precisely, therefore, in reference to the debt due from Cooper to them, in the same position as they would have occupied if Cooper had not delivered the bills to them, and they had not agreed to purchase the same.

The question then recurs, had Cooper such an absolute title to the flour that he could set up such title, as against the plaintiffs, who undeniably are the true owners thereof, unless they by their acts have constituted Cooper the absolute owner ? If I correctly apprehend the first conclusion of law found by the learned referee, it is that the delivery of the flour to Cooper was absolute, and vested in him the title, at least to such an extent that he might sell and deliver it to a bona fide purchaser for value, or dispose of the bill of lading in the same manner. But it béing conceded that the defendants are not such bona fide purchasers, does it not follow from the referee’s finding, that Cooper had not such • absolute title as would enable him to make title in one not a bona fide purchaser P

If Cooper was the absolute owner of the property, and the defendants became his debtors on sale of it to them, there could be no controversy as to their right to set off, against the debt they owed Cooper, those he owed to them. The question therefore recurs, was Cooper, under the circumstances disclosed, the absolute owner of the flour ?

It was purchased for cash on delivery; that is, the cash was to be paid within ten days. The very terms and import of this arrangement are that there was to be a qualified delivery, which was to precede the payment; and it is apparent from the facts in this case that the possession of the goods was intrusted to the vendee for the purpose of enabling him to realize upon them, and thus provide means for the payment of the price. Such an understanding, arrangement or custom, cannot, we think, be construed into an absolute transfer of the title to the property, as between the original parties to it, or those who have no greater equities than the original parties.

A case analogous to this has been lately decided in this court, and will be found in 25 Barb. 474, (Fleeman v. McKean.) The facts are strikingly similar to those presented in this case, and the reasoning of the court is so sound and con-elusive, and so strongly fortified by authority, that it is deemed necessary only to refer to it. It being a decision of this court so directly in point, we fee-1 it our duty to adhere to it, as the law, and abide by it. We entirely concur in the correctness of the principles there enunciated, and have no hesitation in adopting them.

[New York General Term, September 20, 1858.

Daisies, Sutherland and Hogeboom, Justices.]

The judgment appealed from in each case is reversed, and a new trial ordered, costs to abide the event.