Waldron v. . Romaine

*370 Clerke, J. From the statement of facts, it appears that the plaintiffs did everything which they had contracted to do. They procured the goods from the warehouse to be forwarded ; they made the withdrawal entry; they gave a bond for exportation, and obtained a permit to take them from the warehouse; and then the sugar was deposited in the vessel selected by the defendant for transportation. As soon as this was done, did not the property pass from the plaintiffs, supposing, as we find nothing to the contrary, that the defendant had complied with the terms of the sale ? If there was an agreement to sell this sugar to the defendant, if the latter fulfilled the terms of sale, and if the seller did everything that he undertook to do to put it in the exact place designated by the defendant, the plaintiff could not reclaim it except on the supposition of a fraud committed by the defendant, or of his bankruptcy, when the plaintiffs would have the right to seize it by the right of stoppage, in transitu. (Buckley v. Furniss, 17 Wend., 504; Covell v. Hitchcock, 23 id., 611.) To be sure, the defendant could not take absolute possession of it until it passed to Canada, without first satisfying the claim of the United States government. In other words, he bought it subject to a contingent lien, as people every day buy personal and real property, subject to a pledge or mortgage, nevertheless, their ownership in the thing is complete and absolute, subject to the lien or the qualified ownership of the pledgee or mortgagee. Beyond all doubt, they could sell it to any other person, still subject to the pledge or mortgage, without asking permission from their seller or vendor. So could the defendant in this case sell the sugar to any person the moment it was delivered on board the boat, without any intervention on the part of the plaintiffs. Indeed, before it was removed from the warehouse, while it remained in bond, if the defendant thought proper to abandon the idea of transporting the sugar, and preferred selling it at once, subject to the lien of the United States, he had an undoubted right to do so. He could do this on any point of the route from Hew York to Oswego. *371 Even if the plaintiffs were at all responsible for any injury arising from the neglect of the custom-house officers to forward papers to Oswego, still this would not reinvest the property in them so as to make the destruction of it by fire their loss ; unless, indeed, it was a condition of the sale that, before it should be considered complete, this duty should be performed by them. It is objected, that evidence of the conversation between Mr. Washington, the plaintiffs’ brother, and Mr. Mumford, clerk in the customs, was erroneously admitted. On the theory of the defence, it was admissible. The defendant’s counsel maintained that the plaintiffs were guilty of neglect in not making efforts at the custom-house to have the necessary papers forwarded to Oswego. The plaintiffs rebut this, by showing what was done at the custom-house, on their part, for this purpose ; and, to characterize what was done, they introduce this conversation. Such a defence was not at all tenable; but, as it was attempted without objection, it was proper to allow the plaintiffs to give testimony to meet it. At all events, the ground upon which the defendant places his objection is not maintainable. These reasons apply to the objection taken to evidence of Isaacs. The judgment of the Supreme Court should be affirmed. Seldekt and Wright, Js., dissented; all the other judges concurring, Judgment affirmed.