Keeler v. Field

1 Paige Ch. 313

Opinion

The Chancellor :—The sale of the goods in this case was conditional; and until the delivery of the indorsed notes the vendors retained a lien which could not be defeated by the voluntary assignment of the goods by Field, to secure antecedent debts or responsibilities.

[1] The case of Haggerty v. Palmer, (6 John. Ch. Rep. 437,) is in point, and shows that the assignees cannot retain the goods obtained under such circumstances. It was a fraud on the part of Field, to assign the goods before he had procured and sent the indorsed notes. Although the other defendants were not aware of the fraud, at the time they took the assignment, they did not purchase and pay for the goods in the ordinary course of business, and are not entitled to retain them against the equitable claim of the vendors.

They are, however, only answerable for the goods set out in the schedule annexed to their answers, as there is no evidence in the cause, or admission in the answers, from which it can be inferred that they received any other part of the goods. As the complainants did not give informatian of their rights, and request a delivery of the goods previous to the filing of their bill, Bixby and Chapman are not chargeable with any part of the complainant’s costs; but having resisted a legal claim, after they had obtained that information, they must bear their own costs.

There must be a decree that Bixby and Chapman deliver to the complainants, at Marcellus, upon request, the goods mentioned in schedule A., annexed to their answer; and that the defendant Field, pay to the complainants the interest on the whole value of the goods received by him from the complainants, from the time the goods were assigned by him to Bixby and Chapman, until the delivery of that part of the goods to the complainants; and that he also pay for the balance of goods which are not so delivered, with interest thereon, from the time when the goods mentioned in schedule A. are returned to the complainants.

See Russell v. Minor, 22 Wen. 659; Corlies v. Gardner, 2 Hall, (N. Y.,) 345. But if the vendor does not demand the note at the time of delivery, it is a waiver of the condition, and the goods pass to the vendee. Lupin v. Marie, 6 Wen. 77; Hennequin v. Sands, 25 id. 640; see also Mills v. Hallock, 3 Edw. Ch. 652.