Hentz v. . Miller

Danforth, J. The defendant acquired all the right which Cutter & Co. had in the cotton, or which by any act of the real owner they appeared to have. His claim, can go no further. One can only transfer that which he himself has, and the real owner is estopped from setting up his own right, only so far as he has allowed another to have the appearance of ownership. In Collins v. Ralli (20 Hun, 246) the referee and the General Term thought Cutter & Co. obtained possession of the cotton then in question by larceny, and upon that ground held that the defendants, who claimed under Cutter & Co., although themselves innocent purchasers, 'acquired no title to it against the true owner. Judgment was, therefore, rendered in his favor, and in this we concurred (85 N. Y. 637). We were satisfied with the very able opinion which led the Supreme Court to that result. The importance of the ease and the argument of the learned counsel for the appellant have led to a re-examination of the question involved, but so far as it goes we see no reason to depart from that decision. ETor do we find that it conflicts at all with our judgment in Zink v. People (77 N. Y. 114; 33 Am. Rep. 589). There the prisoner had not only lawful possession of the property in question, but that possession was accompanied by evidence of title of the most formal kind, and if regarded only as an agent, he was at least intrusted with the goods for sale, with and not against the will of the owner. ETone of these facts appear in Collins v. Ralli. It is said, however, in behalf of the appellant that the case now before us is not the same as the Collins Case. It is clearly not the same in words, and this is conceded in the opinion of the court below and by the learned counsel for the respondents. A part of the bought and sold note in this case are the words: “ Payment guaranteed by H. M. Cutter & Co. Bill to H. M. Cutter & Co.” Nothing of the sort was in Collins v. Ralli, and if there is any difference in the two cases it is created by these words. The appellant claims nothing else. The ques *70 tion then turns upon them. The first clause must no doubt be taken to mean that Gutter & Co. have guaranteed payment by their principal, and as this is one of the terms of the contract, the plaiptiffs may be held to have relied upon it. The further contention of the appellant would have great force if the second clause permitted the interpretation which the appellant’s counsel claims for it. He says, “ if Cutter was a mere custodian, why make the bill to him and thus furnish him with the title to, as well as the physical possession of, the cotton.” If this assumed fact existed, the possession and document of title would correspond and there would be no difficulty in saying that the loss through Cutter & Co’s fraud should fall upon him who allowed them to have the appearance of owners of the cotton. But I find no reason for supposing that the words “Bill to H. M. Cutter & Co.” mean that the cotton had been billed to them. It is at most a memorandum, and, although found in the bought and sold notes and so evidence of the contract, is to be taken in connection with the other parts of the note, and there we find it plainly stated that the sale is “ to the Freeman Manufacturing Co.” It would, therefore, seem that the words amounted merely to a memorandum, and taken with the rest of the contract to mean only that the bill when made out to the purchasers, i. e. to the Freeman Manufacturing Co., was to be sent to H. M. Cutter & Co., through whom they were said to act. But no bill appears to have been sent or made out to any one, and there is nothing in the words themselves to require a different holding from that of the referee, viz.: that “no bill of sale or other muniment of title of any kind was delivered to” them (Cutter & Co.), nor any document whatever except the bought notes. These corresponded with the sold notes, and they described the contract of sale as one with the manufacturing company. The case cannot be treated as one where a party has by any means obtained “ title to goods ” as well as the possession with the assent of the owner. It may be, as the appellant insists, that the owner was influenced in the sale to some extent by the financial responsibility of the assumed brokers, but the professed guaranty was only an *71 other element of fraud, and, however it might have weighed with the referee, cannot affect the question here. But assuming the contract to have been an authorized contract — that Gutter & Go. were really acting for the manufacturing company, then we are to inquire as to the effect of their contract of guaranty. It was one of the terms of sale and the seller must abide by it. Gutter & Go. assumed to act for the apparent purchasers as brokers. As such they would have had a lien for advances made and expenses incurred, and probably, in case of insolvency of the real purchaser, a right to hold the cotton for indemnity against their liability to loss. But there would be no right of property or sale, save to enforce the lien, and its very existence would imply the right of property to be in some other person. That right was in the plaintiffs; it has never been diverted; nor was there in fact even a lien to be enforced. The case is a very hard one for the defendant and for those whom he represents, but the persons under whom they claim had no title, nor had the plaintiffs armed him with “ any symbol of property.” Both plaintiffs and defendant are innocent, and there is no reason, therefore, why the former should be a sufferer rather than the latter. The judgment appealed from should be affirmed. All concur, except Ruger, Ch. J., and Rapallo, J. not voting. Judgment affirmed.