Hedderly v. Backus

Vanderburgh, J.

The undisputed evidence, we think, would require the jury to find that'the horse in controversy belongs to the defendant.

It is clear that his title is superior to that of plaintiff. He purchased the horse of one Thurston on the 18th day of October, 1890, and paid $1,000 for him.

He was turned over to one McNaughton to keep for the defendant. It is true that McNaughton, who procured a subsequent bill of sale of the horse of Thurston, assumed to sell the horse to the plaintiff in April, 1891, while in possession of him, for the sum of $130, but no title did or could pass by that sale. The fact that McNaughton held the horse as bailee of the defendant did not give him colorable authority to sell, nor work an estoppel against defendant.

His custody as bailee was entirely consistent with the defendant’s ownership. Rawley v. Brown, 71 N. Y. 85; Lowery v. Erskine, 113 N. Y. 52, (20 N. E. Rep. 588.)

The possession of McNaughton, while evidence of ownership, was, of course, not conclusive; and it does not appear that defendant held him out as owner, or acquiesced in his claim of ownership, or, by any act or omission of his, misled the plaintiff, to his prejudice. Plaintiff, therefore, purchased of McNaughton at his peril, and must look to him, or his legal representatives, for his damages.

It is also true that, in the fall of 1890, defendant, having learned that McNaughton ■ had a subsequent bill of sale of the horse from Thurston, and that he had made a bill of sale of him to one Bruce, paid the latter $100, to avoid a lawsuit. But we fail to see any connection between this circumstance and the plaintiffs title to the horse, or that it is any evidence in support of it, since it was clearly established that defendant’s title was, in any event, prior and superior to that of McNaughton, or any one claiming under him. Plaintiff failed to make a case for the jury, and the court properly directed a verdict for the defendant.

Order affirmed.

(Opinion published 55 N. W. Rep. 116.)

Application for reargument denied April 19, 1893.