Collins v. Butts

By the Court,

Savage, Ch. J.

The right of the defendant to set off the value of the 62 pieces of flannels is the question before the court. In order to be entitled to a set off, he must have a demand for which an action might be sustained in his own name. From the evidence given and offered, we must assume the facts to be, that the defendant had no interest whatever in the materials from which the flannels had been manufactured ; the yam belonged to Underhill and had been levied on by the sheriff. Until a sale, the sheriff had a special property in the yarn, and Underhill had the general property. There can be no other interest in personal property. Whether the defendant was receiptor of the yarn is not clear from the sheriff’s testimony. He says that at first he was not, but at the close of his testimony, it is stated that the defendant’s object in going with the sheriff and endeavoring to retake the flannels was to save himself as receiptor and his expenses. The case of Dillenback v. Jerome, 7 Cowen, 294, decides that as receiptor be bad no interest in the property receipted J he is a mere servant of the officer. The defendant contracted with Andrew to manufacture the flannels in question; he told Andrew that he was agent for Underhill, but Andrew looked to him personally for his pay. The defendant proposed to pay him by off-setting a balance due from Andrew to Underhill, and produced an account current, shewing a balance of $189. Andrew objected, and how he was paid, or whether he has been paid at all, does not appear from his testimony. From the testimony of the sheriff it would seem that the defendant acted as his agent in procuring the yarn to be worked up, but was to be reimbursed his expenses. He seems not to have disclosed his agency, if any, in his contract with the plaintiff, but contracted in his own name. He may have incurred personal responsibility for the finishing as well as manufacturing the flannels in question, and still that does not vest in him the property. The difficulty in the case which seems to me insuperable is, that the general property in the flannels is shewn to have been in Underhill, and the special property in the sheriff; and the defendant could have no legal ownership, so as to enable him to bring any action for the property in his own name. The defendant’s right to prosecute did not depend on the fact that he had contracted in his own name, without disclosing an agency; whether an agency was proved, was, under the circumstances of the case, a question of law; there was nothing for the jury to decide ; there was no fact in dispute; the only question was whether certain undisputed facts constituted an agency, or whether those facts shewed any property in the flannels in the defendant.

The recorder staled that the plaintiff had waived his lien for finishing, by refusing to deliver the flannels upon demand, and putting his refusal upon other grounds. The facts stated in the charge do not appear in the bill of exceptions, nor are there any facts shewn which prove a waiver of the plaintiff’s lien. Had the facts appeared in the bill of exceptions stated in the charge of the court, the law was correctly pronounced. The plaintiff had no right to keep the goods to apply upon his own demand against Underhill; and had he refused to give them up to the sheriff upon the ground that he had a right to them, and did not present his lien for finishing, I think he would have waived his lien. 6 Wendell, 608. The ground upon which I place my opinion is, that the defendant had in himself no legal property in the flannels in question.

Judgment reversed and venire de novo to be awarded by the mayor’s court of Hudson.