Mackay v. Mackay

New York Supreme Court

Mackay v. Mackay

1 Lans. 506

DecidedJanuary 15, 1870

StatusPublished

This text of 1 Lans. 506 (Mackay v. Mackay) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mackay v. Mackay, 1 Lans. 506 (N.Y. Super. Ct. 1870).

Pincite

Opinion

Present — Ingraham, Barnard and Brady, JJ.

By the Court

Ingraham, P. J.

The only question in this case is, whether the plaintiff ever acquired such a title to these goods as will enable him to maintain this action for claim and delivery. Conceding that the defendants are liable to the plaintiff in an action for damages for violation of their duty as agents, still that does not establish the plaintiff’s title to the goods in question. The contract was executory. Before it was performed, the person who had made it as agent altered the terms of it, and directed the property to be delivered to himself. It was so delivered as manufactured for him, and paid for by him. There never was any delivery to the plaintiff nor to any one on his behalf.

No one would contend if this sale had be'en made to a stranger and he had paid for the goods, even with knowledge that they had been made under an order of the plaintiff, that the plaintiff had any title which would enable him to take them out of the possession of such purchaser ;■ and yet if the title vested in him before actual delivery, he could maintain an action against a purchaser with knowledge of his claim, as well as against any other person, who had become wrongfully possessed of the property.

■ In Andrews v. Durant (11 N. Y., 35), Denio, J., says: “ A contract for anything not in esse does not vest any property in the party for whom it is agreed to be constructed during [508]*508the progress of the work, nor until it is finished and delivered or at least ready'for delivery and approved by such party.” (Merritt v. Johnson, 7 John., 473.)

So it has been held that where a party, acting in a.fiduciary relation to another, purchases the trust property to his own use, still the legal title is in him and the remedy is in equity. (8 Wendell, 426; 27 N. Y., 567.) I see nothing in the relation existing between these parties to alter this rule. Admitting that the defendants violated their duty, as agents, and have made themselves responsible as such to the plaintiffs, that does not vest the title to the property in them or give the plaintiff any right to the possession.

The judgment should be affirmed with costs.

Judgment affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

Present — Ingraham, Barnard and Brady, JJ.

By the Court

Ingraham, P. J.

The only question in this case is, whether the plaintiff ever acquired such a title to these goods as will enable him to maintain this action for claim and delivery. Conceding that the defendants are liable to the plaintiff in an action for damages for violation of their duty as agents, still that does not establish the plaintiff’s title to the goods in question. The contract was executory. Before it was performed, the person who had made it as agent altered the terms of it, and directed the property to be delivered to himself. It was so delivered as manufactured for him, and paid for by him. There never was any delivery to the plaintiff nor to any one on his behalf.

No one would contend if this sale had be'en made to a stranger and he had paid for the goods, even with knowledge that they had been made under an order of the plaintiff, that the plaintiff had any title which would enable him to take them out of the possession of such purchaser ;■ and yet if the title vested in him before actual delivery, he could maintain an action against a purchaser with knowledge of his claim, as well as against any other person, who had become wrongfully possessed of the property.

■ In Andrews v. Durant (11 N. Y., 35), Denio, J., says: “ A contract for anything not in esse does not vest any property in the party for whom it is agreed to be constructed during [508]*508the progress of the work, nor until it is finished and delivered or at least ready'for delivery and approved by such party.” (Merritt v. Johnson, 7 John., 473.)

So it has been held that where a party, acting in a.fiduciary relation to another, purchases the trust property to his own use, still the legal title is in him and the remedy is in equity. (8 Wendell, 426; 27 N. Y., 567.) I see nothing in the relation existing between these parties to alter this rule. Admitting that the defendants violated their duty, as agents, and have made themselves responsible as such to the plaintiffs, that does not vest the title to the property in them or give the plaintiff any right to the possession.

The judgment should be affirmed with costs.

Judgment affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

1 Lans. 506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mackay-v-mackay-nysupct-1870.

Opinion

Related

Cite This Page — Counsel Stack