Putnam J.
delivered the opinion of the Court. It has 1 been settled at the former hearing of the law in this case,
Hunting &. Lawrence had funds and were to make advances to Evans for the wood and all materials, and were to be allowed therefor on settlement, together with sixty cents per thousand for the clay ; the brick-yard was in their possession as lessees , Evans was to give in his time and services, in the making the bricks ; and the profit and loss were to be divided betw een them, after the account should be settled upon these principles.
It was expressly agreed between them, that Hunting & [503]*503Lawrence should retain the said Evans’s part of the bricks, or 1 . money collected or debts due for bricks, in their possession, to the amount of all sums of money, goods, he., as they might from time to time advance to him.
It appears that on the 10th of June 1829, Evans drew his order on Hunting & Lawrence to pay Thomas Drew “ what sum of money might be due to Evans from the sales of the bricks in 1828, after deducting all sums of money due to them for their advances, &c. Also, what might be due for the making of the bricks this season, after all the men and help are paid and. all other sums of money due or which may be due to Hunting & Lawrence for their advances to me.” The money which might be so received by Drew was to be endorsed on Evans’s note then held by Drew.
So this order was for value received. And Hunting & Lawrence, on June 10, 1829, accepted it in writing, to pay what might be due as above stated.
The legal operation of this order was to assign and transfer to Drew, what should remain due to Evans upon a final settlement of this concern.
It has been objected that this order ought not to have been admitted, but we all think it was competent evidence, tending to establish the original contract on the part of Evans, as it recognises the right of Hunting & Lawrence to retain Evans’s part of the bricks as collateral security ; which is one of the great points in the cause.
Evans went on with the work, until Hunting & Lawrence failed, and on July 3, 1829, assigned their interest to the • plaintiffs. In virtue of that assignment the plaintiffs (as they contend) stood in all respects in the same right and condition that Hunting & Lawrence did. On the same day, the plaintiffs went into the brick-yard and gave notice to Evans of the assignment which Hunting h Lawrence had made to them. Evans assented to it and agreed to act as the agent of the plaintiffs; and they, on their part, agreed to make advances, in the same way and manner as Hunting & Lawrence were to do under the original contract.
It is contended by the counsel for the defendant, that the lien which Hunting h Lawrence had (if they had any at all) [504]*504was a personal privilege, and could not be transferred or assigned. But it is very clear that the parties to the original contract might modify or alter it at their pleasure. And we can perceive no reason why, with the consent of Evans, the plaintiffs might not become the assignees of Hunting & Law rence of their right to retain, as well as of all other rights which had accrued or might arise under the contract. It was a substitution of the plaintiffs in the place of Hunting & Law rence,'with Evans’s consent. And the. defendant who claims under Evans, cannot make any valid objection to it. Urquhart v. M'Iver, 4 Johns. R. 103.
It was proved that the plaintiffs took possession of all the property in the yard, and by writing, on the same .day, they gave the charge of all the property in and about the yard to Evans, with special directions to sell the sgme at retail for cash and when a sum amounting to 100 dollars was received, he was to deposit it in the Branch bank to the plaintiffs’’ credit. I* was proved that Evans then proceeded with the work, he and the plaintiffs being tenants in common. The plaintiffs were to retain the possession of the bricks, &c., just as Hunting & Lawrence were to do; and the profits and losses.were to be divided according to the terms of the original contract.
It is not easy to perceive, (fraud being out of the question,) that there is any thing unjust, illegal or .inexpedient in this arrangement.
It was not suggested at the trial, that there was any mora1 fraud, or any intent to do wrong. But the transaction‘is called in question by a creditor of Evans, who has interfered and atr tached the property as belonging to Evans, in common with the plaintiffs, on the ground that the law will not uphold this trans-: action ; and the question is, whether their attachment should prevail, or whether the plaintiffs should hold the property until their advances should be paid.
It appeared at the trial, that after the settlement of the concern, there would not be enough in the hands of the plaintiffs to pay what was due to them from Evans ; so that nothing could become due to Drew, who stood in the place of Evans, in regard to any balance remaining after the plaintiffs had deducted the advancements &c.
[505]*505Let us consider the nature of the original contract or agreement, and whether it is such as the law will sustain.
As before observed, it was a bond fide transaction, which the law delights to uphold, if it can, without violating any settled rules it has prescribed.
It toas an agreement for the pledging of the bricks as they should be made. It is true that where the property is to be thereafter acquired, it is not strictly and technically a pledge ; it is rather an hypothecation ; but when the title is acquired in futuro, the right of the pledgee attaches immediately upon it. Story’s Bailments, p. 200, § 294 ; Domat, Civ. Law, bk. 3, tit. i, § 1, no. 5 ; Ayliff, Civ. Law, bk. 4, tit. 18, page 530. “Not only goods in present possession, but even goods in reversion, are comprehended under a general pawn or hypotheque, as corn in the ground, a ship to be built with the timber pledged, if there be a clause inserted to comprehend it.” “ An hypotheque may be an assurance of a thing to be delivered hereafter,” ibid, page 525, 542.
. In Montag. on Liens, 36, note (c), it is said, that “it is-usual to speak of lien by contract, though that is more in the nature of an agreement for a pledge. Taken either way, however, the question always is, whether there be a right to detain the goods till a given demand shall be satisfied citing Gladstone v. Birley, 2 Meriv. 404.
This citation presents the point under consideration with great precision. Have the plaintiffs a right under the original contract, assignment and subsequent proceedings, to retain the bricks until their claims arising from the making of them, &c., shall be paid ? Or shall the attaching creditors avail themselves of the plaintiffs’ funds to pay Evans’s debts ?
It is contended that Evans was ostensibly the owner, and that his creditors would be induced to credit him on that account, and so would be defrauded.
Free access — add to your briefcase to read the full text and ask questions with AI
Putnam J.
delivered the opinion of the Court. It has 1 been settled at the former hearing of the law in this case,
Hunting &. Lawrence had funds and were to make advances to Evans for the wood and all materials, and were to be allowed therefor on settlement, together with sixty cents per thousand for the clay ; the brick-yard was in their possession as lessees , Evans was to give in his time and services, in the making the bricks ; and the profit and loss were to be divided betw een them, after the account should be settled upon these principles.
It was expressly agreed between them, that Hunting & [503]*503Lawrence should retain the said Evans’s part of the bricks, or 1 . money collected or debts due for bricks, in their possession, to the amount of all sums of money, goods, he., as they might from time to time advance to him.
It appears that on the 10th of June 1829, Evans drew his order on Hunting & Lawrence to pay Thomas Drew “ what sum of money might be due to Evans from the sales of the bricks in 1828, after deducting all sums of money due to them for their advances, &c. Also, what might be due for the making of the bricks this season, after all the men and help are paid and. all other sums of money due or which may be due to Hunting & Lawrence for their advances to me.” The money which might be so received by Drew was to be endorsed on Evans’s note then held by Drew.
So this order was for value received. And Hunting & Lawrence, on June 10, 1829, accepted it in writing, to pay what might be due as above stated.
The legal operation of this order was to assign and transfer to Drew, what should remain due to Evans upon a final settlement of this concern.
It has been objected that this order ought not to have been admitted, but we all think it was competent evidence, tending to establish the original contract on the part of Evans, as it recognises the right of Hunting & Lawrence to retain Evans’s part of the bricks as collateral security ; which is one of the great points in the cause.
Evans went on with the work, until Hunting & Lawrence failed, and on July 3, 1829, assigned their interest to the • plaintiffs. In virtue of that assignment the plaintiffs (as they contend) stood in all respects in the same right and condition that Hunting & Lawrence did. On the same day, the plaintiffs went into the brick-yard and gave notice to Evans of the assignment which Hunting h Lawrence had made to them. Evans assented to it and agreed to act as the agent of the plaintiffs; and they, on their part, agreed to make advances, in the same way and manner as Hunting & Lawrence were to do under the original contract.
It is contended by the counsel for the defendant, that the lien which Hunting h Lawrence had (if they had any at all) [504]*504was a personal privilege, and could not be transferred or assigned. But it is very clear that the parties to the original contract might modify or alter it at their pleasure. And we can perceive no reason why, with the consent of Evans, the plaintiffs might not become the assignees of Hunting & Law rence of their right to retain, as well as of all other rights which had accrued or might arise under the contract. It was a substitution of the plaintiffs in the place of Hunting & Law rence,'with Evans’s consent. And the. defendant who claims under Evans, cannot make any valid objection to it. Urquhart v. M'Iver, 4 Johns. R. 103.
It was proved that the plaintiffs took possession of all the property in the yard, and by writing, on the same .day, they gave the charge of all the property in and about the yard to Evans, with special directions to sell the sgme at retail for cash and when a sum amounting to 100 dollars was received, he was to deposit it in the Branch bank to the plaintiffs’’ credit. I* was proved that Evans then proceeded with the work, he and the plaintiffs being tenants in common. The plaintiffs were to retain the possession of the bricks, &c., just as Hunting & Lawrence were to do; and the profits and losses.were to be divided according to the terms of the original contract.
It is not easy to perceive, (fraud being out of the question,) that there is any thing unjust, illegal or .inexpedient in this arrangement.
It was not suggested at the trial, that there was any mora1 fraud, or any intent to do wrong. But the transaction‘is called in question by a creditor of Evans, who has interfered and atr tached the property as belonging to Evans, in common with the plaintiffs, on the ground that the law will not uphold this trans-: action ; and the question is, whether their attachment should prevail, or whether the plaintiffs should hold the property until their advances should be paid.
It appeared at the trial, that after the settlement of the concern, there would not be enough in the hands of the plaintiffs to pay what was due to them from Evans ; so that nothing could become due to Drew, who stood in the place of Evans, in regard to any balance remaining after the plaintiffs had deducted the advancements &c.
[505]*505Let us consider the nature of the original contract or agreement, and whether it is such as the law will sustain.
As before observed, it was a bond fide transaction, which the law delights to uphold, if it can, without violating any settled rules it has prescribed.
It toas an agreement for the pledging of the bricks as they should be made. It is true that where the property is to be thereafter acquired, it is not strictly and technically a pledge ; it is rather an hypothecation ; but when the title is acquired in futuro, the right of the pledgee attaches immediately upon it. Story’s Bailments, p. 200, § 294 ; Domat, Civ. Law, bk. 3, tit. i, § 1, no. 5 ; Ayliff, Civ. Law, bk. 4, tit. 18, page 530. “Not only goods in present possession, but even goods in reversion, are comprehended under a general pawn or hypotheque, as corn in the ground, a ship to be built with the timber pledged, if there be a clause inserted to comprehend it.” “ An hypotheque may be an assurance of a thing to be delivered hereafter,” ibid, page 525, 542.
. In Montag. on Liens, 36, note (c), it is said, that “it is-usual to speak of lien by contract, though that is more in the nature of an agreement for a pledge. Taken either way, however, the question always is, whether there be a right to detain the goods till a given demand shall be satisfied citing Gladstone v. Birley, 2 Meriv. 404.
This citation presents the point under consideration with great precision. Have the plaintiffs a right under the original contract, assignment and subsequent proceedings, to retain the bricks until their claims arising from the making of them, &c., shall be paid ? Or shall the attaching creditors avail themselves of the plaintiffs’ funds to pay Evans’s debts ?
It is contended that Evans was ostensibly the owner, and that his creditors would be induced to credit him on that account, and so would be defrauded. But the same objection lies in every case where one man has the actual possession, and another has the constructive possession, together with the legal right of property, in goods or chattels. It is evidence tending to prove, that the transaction is fraudulent against creditors, but not conclusive, oi fraudulent per se.
[506]*506Now we hold it to be clear, that the plaintiffs had a right to retain Evans’s part of the bricks under this contract It was expressly agreed by Evans that they should have such a right. Without such a right it is not to be supposed that the plaintiffs would have made the great advances which were necessary to enable Evans to make the bricks. Every brick as it was formed may well be considered as delivered to the plaintiffs in part execution of the contract. The whole were put into kilns and burnt in the plaintiff’s yard ; for as assignees of the lessees, they legally held the yard in their possession during the term. It was their land, pro hac vice, as much as it would have been if it had been held by them in fee simple. And there the property remained when the defendant attached it.
But it is contended, that if the plaintiffs had a right to retain, they have not in fact retained, but have parted with their right by permitting Evans to have the charge of the property.
The jury have found that the plaintiffs did retain the possession. But if upon the facts reported upon that point, the evidence is not sufficient to support it, the verdict must be set aside. We think that the evidence is sufficient, and that the plaintiffs have held the possession of the property which was pledged.
The substantial part of the evidence arises from the contract itself. Certainly nothing has been done in relation to the manufacturing of the bricks, which was not within the express provisions it contained. Evans “ was to hire the men and board, and was to be allowed therefor; he, to the best advantage, was to perform the manufacturing of the bricks ; and he was to give in his time and services in making the bricks.” He must necessarily have the charge of the whole properly in the yard, while he was in the proces ". of making the bricks, and putting them into kilns and burning them, &c.
But it is contended that the plaintiffs have lost their pledge, by giving an authority to Evans to act as their special agent in the sale of parcels of the bricks at retail. Let us considei the terms of the authority ; and the legal operation of it upon the contract.
The first clause authorizes Evans to take the charge and [507]*507{.are of all the property and effects in and about the brickyard, it having been assigned to the plaintiffs. Evans had by necessary implication the same authority under the contract, as before remarked. But by the terms of the contract, Hunting & Lawrence, and after their assignment, the plaintiffs, were to attend to “ the selling of the bricks, purchasing wood,” &c. And by the second clause in their written authority to Evans, he was empowered to sell the bricks at retail until, further orders from the plaintiffs, for cash only, and whenever 100 dollars should be received, he was to deposit the same in the Branch bank to the plaintiffs’ credit.”
There is now no question before us, how he executed that agency ; whether he deposited the money when he had received to the amount of 100 dollars or not. If he abused the authority, and spent the money instead of placing it to the plaintiffs’ account in the bank, the plaintiffs must unquestionably sustain the loss. But it is difficult to see how the plaintiffs can be otherwise affected by it.
It was a special limited authority, which bound the plaintiffs so far as it was executed, but which could not affect their right in and to the great bulk of the property, which remained untouched by the agent. A release of part of an undivided portion of things pawned or pledged, will operate only as an extinguishment pro tanto. Story on Bailm. p. 244, § 364. It is a question of intent, ibid. § 365.
Besides, by the express terms of the authority, this special agency was to continue only until further orders; and the case finds that the plaintiffs were afterwards dissatisfied. They discharged Evans, and appointed Hunting to be their agent, before the attachment was made. So that from the time Evans was discharged, until the attachment, the plaintiffs had the" actual possession, care and charge of the brick-yard, bricks and property, by themselves or their new agent, Hunting.
To say that this limited authority to sell bricks by retail, in small sums, on account of the plaintiffs, was a waiver of their possession of the residue that remained in the kilns in their yard, would be clearly against the intent and meaning of the parties, unreasonable, and unwarranted by the evidence.
But'no possession, charge, care or authority, was ever given [508]*508to Evans 'in his character of pledger of the bricks. The general authority which he had under the contract, to take the charge of the yard while the process-of manufacturing was going on, was an agency quoad hoc created by necessary implication. If it were not so, the agreement to retain was a felo de se. And the special authority given by the plaintiffs to Evans, was to clothe him with the character of agent to a limited extent only, and no remission to him, in his character of pledger, of the plaintiffs’ right to retain the bricks according to the agreement. He was their special attorney, with a limited power. Com. Dig. Attorney, C 4. “ Many persons have ability to act as an attorney for others ; as a monk, infant or alien, may make livery as an attorney,” &c. A feme covert may make livery to her husband, or vice versa. So she may act for him in any department or business. Emerson v. Blonden, 1 Esp. Rep. 142. So her promise for her husband will take the case out of the statute of limitations, she being authorized to act in that behalf for him. Per Butter J. in Palethor v. Furnish, 2 Esp. Rep. 511, note. So a man may be an attorney to another though he has an interest; as he in remainder shall be an attorney to give livery to the lessee for life. ...
And in these cases, the act done by the attorney is treated in the law just as if it had been done by the principal who gave the authority. Thus in Moor 11, pi. 41, “ the lessor made a letter of attorney to his lessee for years, to make livery of the land which was under lease, to a stranger, who made it accordingly. It was nevertheless agreed, that the act and agreement of the lessee was no surrender of his term, for he did not make the livery in his own right, but as the servant or agent [minister] of the lessor, and by bis authority. And when the lessor made the feoffment, he did not give any thing but what might rightfully pass, viz. his reversion. And the livery of the lessee gave nothing to the feoffee, but is only the mode of passing that which the lessor might lawfully pass. As if the tenant make a feoffment of his "tenancy, and the lord as attorney make livery, it does not extinguish his seigniory, for he did nothing unless by the.authority given.” The reason is-clear. The lessee was not acting in his character as lessee, [509]*509Dut as an agent and attorney of the lessor. It was legally the act of the lessor. Co. Lit. 112 b. Paley on Princip. and Agent, pi. 1, § 1, “In all cases where a man has power as owner, or in his own right, to do any thing, he may do it by another ; as to sell his lands, goods,” &c.
And the principal shall not be prejudiced beyond the authority given, any more than the attorney shall be prejudiced oy the execution of the authority or agency.
Suppose that A keeps a livery stable, and sells a horse or pledges a horse to B, and delivers the possession to B accordingly ; may not B keep the horse at the same stable after-wards, without losing his possession ? From and after the delivery, A acts in character of livery-stable-keeper merely, not in character of owner.
Suppose that A, having so pledged and given possession of the horse, should go and live with B as a coachman ; and B should send him with the horse to be shod on his account by the blacksmith ; could it be maintained that B had waived or lost the possession of his pledge ? Clearly not. The possession would continue to be kept by the servant, for the account of the master.
If the vender or the pledger should have the actual possession of the property after it were pledged or sold, it would be only prima facie, but not conclusive evidence, of fraud. The matter might be explained and proved to be for the vendee or pledgee. It is a most familiar principle, that one man may have the actual possession or custody, while another has the legal title and the constructive possession. Brooks v. Powers, 15 Mass. R. 244; Badlam v. Tucker, 1 Pick. 389.
And the same principle is recognised in Latimer v. Batson, 4 Barn. & Cressw. 652. In this ease one R purchased certain furniture belonging to the Duke of M, seized by the sheriff on an execution against the duke. R sold the same to the plaintiff, who put his servant into possession, but the duke was permitted to continue to use the goods after the sale, just as he had done before. But the true state of the transaction was generally well known. Another creditor, however, levied his execution on the same goods as belonging to the duke Abbott C. J. said, “Possession is much to be re[510]*510garded, but that is with a view to ascertain the good or bad faith of the transaction.” It was so left to the jury. He said, the judge would not have been justified in telling the jury, that the sale was void in consequence of the duke’s having enjoyed the use of the goods by the sufferance of the purchasers.
The lien would be destroyed if the party gives up his right to the possession of the goods. Whether he did relinquish it or retain it, was submitted to the jury as a fact, and they have found that he retained it.
In the case at bar, we think it to be perfectly clear, that the plaintiffs had the right to retain in virtue of the original contract; that they took the actual possession ; that the right to retain was never waived or given up ; that the limited agency exercised upon some of the goods for the benefit of the plaintiffs, did not affect the great part of them that were attached ; and that no right to those goods ever passed from the plaintiffs to the pledger as such, he having merely a limited agency or power only to act for the plaintiffs in this respect, and which was revoked before the attachment.
In our opinion, the evidence upon this point is clearly sufficient to support the verdict, and judgment must be rendered for the plaintiffs accordingly.
See Macomber et al. v. Parker, 13 Pick. 175.