Citation Numbers: 7 Daly 393
Judges: Daly
Filed Date: 1/7/1878
Status: Precedential
Modified Date: 10/19/2024
The theory of the plaintiff is, that the proceeds of the goods consigned to Thomas & Co. are their property, as against the consignors, because of the advances made by them and their guaranty of sales under their del credere commission. The consignment to them upon an agreement for advances gave them a vested interest in the goods for their protection and as security for their advances and charges; an interest which enabled them to hold the goods against third parties and the consignor himself, but only so far as was necessary for their protection and security, and their title was a qualified one. (Grosvenor v. Phillips, 2 Hill, 147; Francklyn v. Sprague, 10 Hun, 589.) They have the same interest in the proceeds of sales that they had in the property sold, a special interest to the extent of their advances. As guarantors under a del credere commission they had no exclusive right to collect the proceeds of sales; the consignor might collect them, (Sherwood v. Stone, 14 N. Y. 267-270.) Until- their advances were repaid they
Any confusion on this point arises from adjudications upon section 179 of the Code of Procedure as to the alleged fiduciary character of the relation between consignor and factor, and the right of arrest for failure to pay over the proceeds of consignments. Of this nature, or rather on this question only, are the decisions cited by the appellant in support of his claim of absolute title in the factor as against the consignor. (German Bank v. Edwards, 53 N. Y. 541; Farmers' Mech. Bk. v. Sprague, 52 N. Y. 605; Liddell v. Baton, 7 Hun, 195.) In all the cases upon the question of arrest of the factor at suit of the principal, the inquiry is, whether the fiduciary relation, i. e., that of personal trust, exists, and the distinction between such trusts and the ordinary relation between consignors and general commission merchants has been pointed out repeatedly. (Stoll v. King, 8 How. Pr. 298; Sutton v. De Camp, 4 Abb. Pr. N. S 483; Clark v. Pinckney, 50 Barb. 226; Duguid v. Edwards, 32 How. Pr. 254.)
If the goods consigned were unsold at the time of the assignment they would not have passed to the assignee. (White v. Blatt, 5 Denio, 269-273.) It might be that moneys collected from sales under such consignments, if in the possession of the assignor at the time of the assignment and mingled with his other funds, would pass to the assignee; but I regard the case to be different where the assignee proceeds to collect the proceeds of such sales and to pay them over to each consignor according to the latter’s separate consignment account. Each consignor might have made such collections himself for sales of his own goods if the factor had not the special property therein for his- advances. The title to the proceeds of the sales is not divested
For these reasons I regard the disposition of the moneys collected by the assignee as proposed by the latter eminently proper, and think the order of the special term should be affirmed with costs.
Van Hoesen and L arremore, JJ., concurred.
Order affirmed with costs.