Empire State Type Founding Co. v. Grant , 9 N.Y. St. Rep. 141 ( 1887 )

Van Brunt, P. J.:

íhis action was brought to recover the possession of a quantity of personal property which the defendant as sheriff claimed to hold under an attachment issued against the property of one Tremelling and which the plaintiff claimed was its property. It appears that in March, 1886, the plaintiff agreed to sell, to Tremelling, two printing presses and a quantity of printers’ supplies, for the price of $1,100 to be'paid for, $500 in cash upon the completion of the delivery and the balance by giving a chattel mortgage on the property. The plaintiff then commenced to make the delivery, and fifteen or sixteen days elapsed before the delivery was complete, it being necessary to set up the presses and shafting. When the delivery was about half completed Tremelling paid $250 on account of the $500 cash. After the delivery had been completed the plaintiff endeavored to find Tremelling, but without success, and on the following day learned that he had absconded and that the sheriff had taken possession of the goods by virtue of an attachment issued against Tremelling. Demand was then made upon the sheriff to surrender possession, and thereupon this action was commenced and the goods replevied by the coroner. Upon the trial of the case the court directed a verdict in favor of the defendant, and upon like direction the jury assessed the value of the property as of the amount stated in the affidavit upon replevin.

The question presented in this case is as to whether the title to the property passed to the vendee upon delivery, or whether there was an implication contained in the agreement testified to, that the title was not to pass until payment was made in the manner agreed upon. It is conceded that in the contract made there was no agreement but that the title should pass upon delivery and the rule applicable to cases of this description is, that the vendor by parting with the possession of his property loses all claim to a vendor’s lien unless there is an agreement between the parties preventing the passing of the title until the purchase-price has been paid.

It is urged upon the part of the plaintiff? that the jury had a right to infer that there was such an agreement from the nature of the contract of sale. This would be undoubtedly true were it not for the testimony of the witness who made the bargain and the only witness produced by the plaintiff. Upon being examined in regard to the terms of the contract, he was questioned as to what the general rule was upon the sale of goods of this description where the purchase-price was only paid in part, and his testimony was that the rule was to take a chattel mortgage upon the property to secure the payment of the balance. He was asked whether these goods were sold according to the general rule, and his reply was that they were. He was then asked“ Q, You didn’t make an exception in this case from any. other goods you sold on credit? A. No sir. Q. You sold your goods to him on credit the same as to anybody else ? A. Naturally. Q. Did you make any inquiries as to whether this gentleman was solvent ? A. I did.”

And he further testified that the inquiries which he made were satisfactory to his judgment. This evidence clearly shows that there was no intention upon the part of the vendor to retain tbe title of the goods until the purchase-price had been paid. They were sold on credit. It is true that the vendor intended that the credit should be a short one, but nevertheless there was no understanding between the parties or which could be predicated upon the agreement as testified to by this witness, that the title should not pass until the purchase-price had been paid. It may be all very true that the vendor had an equitable lien to the extent of the mortgage, and that the credit was not given to that extent, but above the mortgage Tremelling was the owner and had an interest in the goods upon which the sheriff could levy, and justified his taking possession of the property. Under these circumstances replevin would not lie, because the sheriff had the right to the possession of the goods in order to sell Tremelling’s interest therein subject to the lien of the equitable mortgage.

The objection that it was error on the part of the court to direct the jury to assess the value of the property at the price agreed to be paid therefor because no evidence of value had been given is not well taken. The affidavit upon the replevin was before the court, and was proved and sworn to by the plaintiff as to the value of the property, and this proof uncontradicted was sufficient to justify the direction of the court, it being an admission of the highest character. Nor was it error to assess the full value of the property because the plaintiff had an equitable mortgage thereon and all that the sheriff could sell was the equity in the property owned by Tremelling. Section 1726 of the Code provides that a verdict report or decision in an action for a chattel, where it awards to the prevailing party a chattel which has been replevied, must fix tbe value of the chattel at the time of the trial, except in the cases mentioned in section 1727, both of the subdivisions of which section are predicated upon the fact that the plaintiff is the general owner of the chattel, which was not the fact in the case at bar.

There seems to have been no error committe and the judgment appealed from should be affirmed, with costs.

Brady, J.:

The sheriff could lawfully levy upon the property in dispute and sell the interest of the debtor in it, subject to the plaintiff’s lien. I concur in this view, and that the judgment should be sustained to that end.