Jennings v. Merrill

20 Wend. 9

• Court: New York Supreme Court
• Decided: July 15, 1838
• Status: Published

Opinion

By the Court, Nelson, C. J.

This case turns upon the true construction of the 3d section of the act of 1830, which provides^ that£i every factor or other agent entrusted with the possession of any bill of lading, &c., or who shall be entrusted with the possession of merchandize, for the purpose of sale, or as a security for any advance to be made or obtained thereon, shall be deemed the true owner thereof, so far as to give validity to any contract made by such agent with any other person, for sale or disposition of the whole or any part of such merchandize, for any money advanced, or negotiable instrument, or other obligation in writing, given by such other person upon the faith thereof."

The agreement in anticipation of future endorsements, was, no doubt, inoperative under the statute, -till the liability was actually assumed; but after that we perceive no substantial reason against giving to it full effect. When the liability of Merrill & Bowen was assumed, the contract was unrescinded and existing, and the jury have found the endorsements were made upon the faith of it. There is nothing in the statute requiring that the contract should be made at the point of time the money is advanced, or the negotiable instrument, or other obligation in writing given—all it exacts is that one or the other should take place upon the faith of it. There must be a contract of sale or pledge existing at the time of the advance or obligation entered into, but it may have been previously arranged, and if open and unrescinded, is as binding and operative under the statute, as if then made.

Judgment affirmed.