McCauley v. Brown , 2 Daly 426 ( 1869 )

By the Court.—Barrett, J.

By the provisions of the Revised Ordinances of 1859, p. 356, § 2, it is made unlawful “ for any person to receive or hold a license to keep public carts, or to be a public cartman, unless he be the actual owner of the cart or carts so licensed.” The taking out of the license for the truck in question was, therefore, a declaration of ownership made by the .plaintiff’s brother, John McCauley, with the plaintiff’s fell knowledge and consent, upon which the defendants had a right to and did rely in making the purchase. These facts, coupled with John McCauley’s actual possession, and seeming ownership, bring the case within the principle that when the owner of goods stands by, and permits another to treat them as his own, whereby a third person is led to purchase them in good faith, the former cannot recover the goods, or their value, from the buyer (Thompson v. Blanchard, 4 N. Y. 303; Hibbard v. Stewart, 1 Hilt. 207; Brewster v. Baker, 16 Barb. 613; Cheeney v. Arnold, 18 Barb. 434; Dezell v. Odell, 3 Hill, 215; Pickard v. Sears, 6 Ad. & El. 469; Gregg v. Wells, 10 Ad. & El. 90). The doctrine applies, although the plaintiff was not present when the bargain was made. It is sufficient that, by his previous conduct, he enabled his brother to assume the credit of ownership, and to deceive the defendants (Thompson v. Blanchard, supra).

The judgment with respect to the truck was, therefore, erroneous; and as there was no evidence of the separate value of the harness, except the wholly insufficient statement of what the plaintiff had paid for it some seven months prior to the sale, we have no basis for a modification of the judgment. Besides, the conduct of these brothers savors very strongly of collusion. John McCauley had previously offered the truck for sale, with the plaintiff’s knowledge, and seemingly with his consent—certainly, without any expression of his disapprobation. From these and other unfavorable circumstances, such as the plaintiff’s failure to assert his title upon the discovery of the property in the defendants’possession," we are not inclined to strain a point with respect to the evidence of value, for the purpose of upholding this judgment, even in part. It is fairer to leave the parties in such a position, that the plaintiff may, if he think fit, bring a fresh action for the value of the harness, when the defendants can have these facts and circumstances submitted to a jury, upon the question of collusion and authority.

The judgment should be reversed.