Tyler v. Freeman

57 Mass. 261

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1849
• Status: Published

Opinion

Metcalf, J.

The court are of opinion that the sale, in this case, was conditional, and that the condition was not waived by the delivery, nor by any thing afterwards done or omitted by the plaintiff. In Smith v. Dennie, 6 Pick. 262, .sited by the defendant’s counsel to show that the plaintiff’s delay was fatal to his present claim, the note for the goods sold was not called for by the seller until eight days after the sale. In the present case, the plaintiff followed up the buyers, without intermission, until the property was seized on an execution against them.

It is contended for the defendant, that the action, if maintainable at all, cannot be maintained by the plaintiff; he having sold the property as auctioneer, and being the mere servant or agent of the owners; that although, by the decisions in Williams v. Millington, 1 H. B. 81, and other cases cited for the plaintiff, he may maintain an action of assumpsit against the buyer, for goods sold, yet he cannot maintain an action of tort against a third party, who obtains the goods from the buyer by an illegal taking, or otherwise. But we do not perceive any difference in principle between the two cases. The grounds on which Williams v. Millington proceeded were, that an auctioneer has a possession, coupled with an interest, in goods which he is employed to sell; not a bare custody, like a servant or shopman, but a special property, with a lien for the charges of the sale, the commission, and the auction duty which he is bound to pay. Heath, J., said, if the goods should be stolen, the auctioneer might maintain trespass or an indictment for larceny. According to this and the other decisions cited for the plaintiff, he had a special property in the goods sold by him. That property was not lost nor divested by what passed between him and the buyers. He is liable to his employers for the goods, or for the price at which they were sold, and may well maintain the present action, by the principles of the common law. He is also the “ party entitled to possession,” within the meaning of the Rev. Sts. c. 113, § 27. In Furniss v. Hone, 8 Wend. 247, auctioneers brought a bill in equity against third persons, to whom the buyer had fraudulently transferred the goods, without paying the plaintiffs for them, and no objection was made to their right to maintain such bill in their own names. See also Paley on Agency, (Lloyd’s ed.) 363.

The other point made in this case, viz., that an attaching creditor can hold the goods against the plaintiff, was decided in the preceding case of Hill v. Freeman.

Judgment for the plaintiff.