Van Dine v. Willett

By the Court, Ingraham, P. J. The property in controversy in this action was ordered by the assignor to be manufactured for him, in England, prior to the execution of the assignment. It did not arrive here untij after that date. On the arrival of the goods here they were sent to the public store, and were afterwards entered in the name of the assignor on behalf of the assignee, who paid the duties, and who subsequently paid the contract price for the goods, to the manufacturer. The defendant levied upon the goods in behalf of a judgment creditor. The plaintiff claims the goods as assignee, and the defendant resists the claim, 1. On the ground that no title passed to the assignee, under the assignment. 2. That the assignment was void. At the time of the execution of the assignment the contract for the manufacture of the goods had been made, the orders had been sent, and the subsequent delivery proves that the orders had been accepted. The assignor therefore had a claim to have the goods manufactured, which he could enforce, and which contract he could assign. Whatever interest he had, under the contract, passed under the assignment, to the assignee. The assignee was not bound to accept such an assignment, and he might, undoubtedly, have refused to accept the goods; and would not, in such a case, have been liable to the manufacturer, for the purchase money. But he elected to accept the goods, which is evidenced by his payment of the duties and the purchase money. This election was before the levy by the sheriff, and whatever doubt there might have been if the levy had been made before the assignee [321] had elected to take the assignment and comply with the terms of the contract, as soon as such election was made, the interest of the assignor in the property was at an end, and the title was in the assignee. After that, the sheriff was a trespasser in taking the property as the property of the assignor. The facts, as proven, show the delivery by the manufacturer to the assignor on board of the vessel subject of course to his right to stop the goods in transitu, but which right was not exercised, and the goods reached the place of destination. Both parties must be considered as conceding that the assignor obtained title to the goods as soon as they were placed on board of the vessel in pursuance of the orders before given, for their manufacture, as both claim under his possession. As to all the world, except the vendor, the title passed to the assignor, and no other person could dispute that title. The assignment conveyed all the goods, chattels, merchandise, &c., and property of every name and nature whatsoever, of the assignor. These w'ords were sufficient to include all the property of the assignor, wherever it might be ; and I see no reason why it did not include any property belonging to him on board of a ship, as well as in his store. If any measures had been taken to rescind the contract, that might have defeated the plaintiff’s title; but as no such proceedings took place, the title of the assignor was not' impaired, and whatever title he had passed to his assignee under the assignment. The fact of the entry being made in the name of the assignor for the use and under the direction of the assignee, who paid the duties thereon, would not deprive the plaintiff of title to the goods, if that title had passed under the assignment previously. There is no'ground for imputing any fraud to the assignee on that account. The other ground alleged by the defendant for dismissing the complaint was that the assignment was void. [322] ' 1. The direction to pay the rents and taxes on the real estate until sold, was a necessary power to preserve the property; and the assignee would have been authorized to do it if the authority was not included in the instrument itself. It is true, as held in Carter v. Hammett, (12 Barb. 254,) that the assignee had a right to elect whether he would accept an assignment of a lease, so as to make himself liable for rent to the landlord, but if he refused to accept, the authority to pay rent and taxes would become imperative, while the acceptance would make him liable until sale, whether the assignment authorized payment of the rent or not. 2. It is objected that the assignment authorizes the payment of debts due and to grow due. The defendant’s counsel admits that if this had been confined to debts for which the assignee (who was intended to be secured) was at the time liable, it would be good. The assignment will bear no other construction. It authorizes the payment of debts, bonds, notes and sums of money due and to grow due. Whether they were payable at the time or not, would be immaterial. The assignment expressly confines the payment to debts &c. for which the assignor was then liable to the assignee. It could not in any way be made to cover debts not then in existence, 3. The authority to employ an attorney is also objected to. The appointment of an attorney does not authorize the assignee to substitute any one in his place. He still remains liable and bound to act as principal. Any discretion must be exercised by him and on his responsibility. Whatever an attorney does in the business is considered as done by the assignee. That he might employ an attorney without any express authority is undoubted. The authority given to do so does not in any way invalidate the assignment. The case referred to in Planck v. Schermerhorn (3 Barb. Ch. Rep. 644) was a case where the assignee had a right to name a successor, not appoint an attorney. I see no reason for holding the assignment void as matter [323] of law. If there was any fraud in fact the question was for the jury, and not for the court. [New York General Term, September 15, 1862. My conclusion is that the court erred in dismissing the complaint, and that the judgment should be reversed, and a new trial ordered. Costs to abide the event. Ingraham, Leonard and Clerke, Justices.]