Wilber v. . Sisson

Gray, C. The agreement under which Gamel agreed to “ work the dairy and land” of Conger, so far as it related to the cheese to be manufactured from the milk yielded by the dairy thereon, is susceptible of but one just construction, and that is that Gamel was not to take or dispose of any portion, of it until after he should deliver 9,600 pounds to Conger, at whatever place it should be contracted to be sold. It was but the residue of the cheese, with the butter thereafter produced from the milk of the dairy, that was to belong to him, and to the avails of the 9,600 pounds of cheese, the first product of the dairy, he neither (as against Conger) acquired ownership'nor the right to sell. (Chamberlain v. Shaw, 18 Pick., 278, 282, 283; Lewis v. Lyman, 22 id., 437, 443, 444; Hatch v. Hart, 40 N. H., 93, 98, 99.) The principle adjudged in these cases is approved in Pulman v. Wise (1 Hill, 234,247,248), whenever in its operation it would not be a fraud upon the occupant’s creditors. Ho such ground is assumed here, and if the plaintiff had rested his ease upon the ground that he was a bona fide purchaser without notice, and there was merit in it, the court erred in not permitting the defendant’s counsel to argue that question to the jury. The cheese was manufactured at the place agreed upon, and that being the place it was contracted to be delivered when sold, Conger’s title to it was complete. It was not his fault that the cheese stood to the credit of Gamel at the factory; that was a matter arranged by Gamel without Conger’s consent, and apparently against his wishes. Hor did it matter that it was not made exclusively out of the milk *125 of his dairy; it was not made out of any other milk in which Gamel had an interest, and, as it was in reality the product of Conger’s dairy, it did not lie with Gamel to assert a title to it as against him. The judgment appealed from should be affirmed, and, under the plaintiffs stipulation, judgment absolute must be rendered against him, with costs. (Hutchins v. Van Brunt 38 N. Y., 335.) All concur. Order affirmed, and judgment accordingly.