Soltau v. Gerdau

Brady, J. These facts lead but to one conclusion, assuming them to be true; and that is that Smith committed a theft of the rubber, and was guilty of larceny. Prior to the Penal Code, a distinction existed between larceny, eo nomine, and the crime of obtaining property by false pretense, which protected the purchaser, inasmuch as the latter offense then involved, not only the transfer of possession, but the right of property also, as the result of the fraud successfully practiced. These distinctions were admirably and fully stated by Justice Pratt in Collins v. Ralli, 20 Hun, 246, and adopted by the court of appeals, where the judgment was affirmed on his opinion. See 85 N. Y. 637. . In either case, as said by Danforth, J., in People v. Dumar, 106 N. Y. 502, 13 N. E. Rep. 325, the property may have been obtained by artifice or fraud. The distinction mentioned, illustrated by the cases referred to,—namely, Bassett v. Spofford, 45 N. Y. 387; Zink v. People, 77 N. Y. 114; Thorne v. Turck, 94 N. Y. 90; People v. Morse, 99 N. Y. 662, 2 N. E. Rep. 45,—continued, as also observed by Justice Daneorth, until the adoption of the Penal Code in 1881, which, recognizing the moral guilt of the offenses as the same, swept away the theory by which the court felt constrained to distinguish them in principle. And consequently, by section 528, it was provided that a person who, with the intent to deprive or defraud the true owner of his property, or of the use or benefit thereof, or to appropriate the same to the use of the taker, or of any other person, either takes from the possession of the true owner, or of any other person, or obtains it from such possession by color or aid of fraudulent or false representation or pretense, or by any false token in writing, steals such property, and is guilty of larceny. There are other provisions enlarging the sphere of the section, but enough is quoted to show that Smith, on the evidence given herein, was guilty of larceny; having, as he did, obtained possession of the rubber by fraudulent or false representation or pretense, and with the intent to deprive the plaintiff of the benefit of it, which he did. By this discussion of the provisions of the Penal Code, it is not intended to declare that the distinction which existed prior to the Penal Code between larceny, eo nomine, and obtaining goods by false pretenses, no longer exists. On the contrary, it is thought that the case referred to, recognizing the distinction, must prevail, until it is otherwise de [167] tided by the court of last resort, or changed by an act of the legislature. In the consideration of this appeal, therefore, the distinction is kept in view; so that, if the defendant have any right resulting from it, it must be declared and secured. It is thought, however, upon all the facts and circumstances considered with regard to the decision in Hentz v. Miller, 94 N. Y. 64, and keeping in mind the distinction referred to, that Smith, the broker, intended to appropriate the rubber to his own use when he reported the false contract by which he obtained possession of it. This, indeed, was the basis of the whole transactions. It was followed by the warehouse incident, in which he took a receipt in his own name, instead of that of his principal,—falsely informing the latter, nevertheless, that the rubber was stored in his name, and in a different warehouse; and, further, by the sale of the rubber, and the appropriation of the proceeds. The case is the same in all its essential elements as Hentz v. Miller, 94 N. Y. 64. In that case a broker falsely represented that his firm had orders to purchase 100 bales of cotton, and the plaintiffs," relying thereon, contracted to sell to the vendee named. Bought and sold notes in the usual form were delivered by the plaintiffs, in which the sale was stated to have been made to the vendee named. Ho bill, warehouse receipt, or other muniment of title was in fact delivered to the brokers making the representations, but the cotton itself was delivered to them by transfer to the supposed purchaser. They, however, placed it in a warehouse, obtained advances upon the warehouse receipt, and it was subsequently sold to bona fide purchasers. It was held that the transaction by means of which the brokers obtained possession was a larceny. In the opinion expressed, it was said to be a very hard case for the defendant, and no doubt it was. The claim of the defendant rests substantially upon the proposition that the acts of Smith constituted the offense, if any, of false pretenses, which enabled him to confer a title to the rubber. But this proposition, in view of the case just cited, cannot be sustained. Indeed, under the adjudications before mentioned, the charge of larceny is sustained, for the reason that the plaintiff parted with the possession of the rubber only for the purpose of having it delivered to the vendees under the contracts secured by Smith, reserving a right of property therein. There seems to be no doubt, upon this branch of the case, that the defendant, independently of the provisions of the Penal Code supra, acquired no right by his advances to Smith which he could enforce, but rather that it became the duty of the judge presiding at the.trial to reject his asserted claim. The defendant insists, nevertheless, that he is not deprived of his defense, inasmuch as he is protected by the factors’ act; but in this he is in error, inasmuch as its provisions have not been extended to cover stolen property. This proposition is well stated and sustained in Collins v. llalli, supra, and is founded upon decisions of the court of last resort, duly cited. Upon this feature of the defense, the defendant must also fail. It is true that it was sought to be maintained by inference that the plaintiff had sold the rubber to Smith absolutely, and vested him, therefore, with the jus disponendi; but this proposition, however ingenious, cannot derive any countenance from the facts. The plaintiff’s statement to the contrary is not gainsaid; and, though some correspondence and bills appear bearing upon the subject, they are explained clearly by the mode in which the business was conducted between Smith and the plaintiff, which was done, as the plaintiff said, mysteriously, in order to prevent competition, although it will have been perceived that in the broker’s notes the sale is said to be for account of Bobert Soltau. The plaintiff never, by any of the incidents as understood both by him and Smith, intended to regard the latter other than as his broker in whom he had confidence. The acts of both Smith and plaintiff so clearly establish this that a verdict to the contrary could not be sustained. This is not a case in which it appears that the plaintiff voluntarily placed Smith in possession of the indicia of title, and thus enabled him to practice upon the unwary. His act in this [168] regard, having been induced by fraud, was involuntary and by force. People v. De Leon, 16 N. E. Rep. 46. The discussion of these two questions involves and embraces all the others presented upon behalf of the defendant, which are collateral to them, and must fall with the main contention. The exceptions must for these reasons be overruled, and judgment sustained, with costs. Daniels, J., concurs. Tan Brunt, P. J., concurs in result.