Macomber, J. This action is trover to recover of the defendant, who is the assignee for the benefit of creditors of a firm known as the “ Clark Manufacturing Company,” the value of certain property which came into his hands as such assignee.
The plaintiff and the defendant’s assignors entered into an agreement January 29, 1880, by which a given quantity of personal property, consisting of machinery, patterns, and merchandise, was transferred from the former to the latter, to be paid for in installments, represented in amount by promissory notes ranging in times of payment between April 1, 1881, and April 1, 1889. When this action was begun (April 17, 1887) three of such notes, of $1,000 each, remained unpaid, but only one of them was due at that time.
By the terms of the contract between the original parties it was agreed that “said machinery shall be the property of the said Brewer, in care, custody, and charge of said Mix Brothers, until paid for.” Upon the first trial objection was made by the defendant that no recovery could be had except upon a surrender of such outstanding notes.
The justice presiding made a ruling to that effect, and afforded the plaintiff an opportunity to surrender the notes, which was declined by counsel, who had the notes in court, and who claimed the right to collect upon the notes any sum over and above the amount of the verdict which the jury might render in this action. A verdict for the defendant was accordingly directed.
On appeal to this court, the judgment entered thereon, and an order denying a motion for a new trial, were reversed, and a0new trial granted. 7 N. Y. Supp. 244. The prevailing opinion placed the decision upon the ground that the action might' be main 620 tained without tendering the unpaid notes, because, as was there decided, the seller was confined in his remedy neither to a repossession of the property nor to the notes, but could avail himself of both.
The dissenting opinion was, in substance, that, by holding on to the commercial paper, the plaintiff assumed an attitude in this forum so inconsistent with the claim made in the complaint that the court could not properly permit him to proceed; for otherwise the rescission of the original contract, which the beginning of this action necessarily made, would not be a real, but a sham, rescission, and an action might still be maintained upon each of the outstanding notes; and that the active duty rested upon the plaintiff to restore, before recovering a verdict in this action, the unpaid paper still held by him.
But, as stated above, a majority of the court decided otherwise, and held that the plaintiff had his cumulative remedy of recovering the property or its value, on the ground that no sale of it had been made, and prosecuting the outstanding notes to judgment, or proving them for payment or dividends against the defendant as assignee of the estate of the Clark Manufacturing Company, upon the ground that the property had been sold to the defendant’s assignors, and that a debt existed therefor.
The case was treated as though the plaintiff held a chattel mortgage as collateral security for the unpaid purchase money. The new trial has been conducted in accordance with the prevailing opinion of this court on the former appeal. The same persistent purpose to affirm and disaffirm the original contract prevails throughout the case. The counsel for the plaintiff, in the course of the trial, said: “Now, if the court please, I have here the three notes in question.
I offer to place them in the possession of the court, or with such person or persons as the court may direct, for the purpose and with authority to indorse upon these notes whatever recovery may be obtained in this action; and, if the recovery is equal to the amount of the notes, then that the notes may be surrendered to such person or persons as the court may direct.
If the recovery is less than the amount of the notes, then the amount of such recovery to be indorsed upon the notes as so much payment. ” It was this attitude of counsel which induced the direction of the verdict at the first trial, which decision, on appeal, a minority of the court held to be correct. But the court held, otherwise. Except for the authority of that decision, adherence to precedent, as well as legal principle, would, in my judgment, lead to a different result.
But that judgment was given in this case on facts in no wise materially different from those now before us. It stands, therefore, res judicata. It is binding and conclusive on this and all courts of concurrent power. The present case is identical with the former appeal in the parties, in the cause of action, and in the thing sued for. It was manifestly tried in accordance with the decision of this court previously rendered.
We are not, consequently, at liberty to revise the former adjudication, though the present majority of the court are committed against it. There remain, therefore, to be considered by us only such subsidiary questions, if any, arising on the second trial as were not in the former case.
It is contended by the appellant that, even though there may be a recovery for certain articles, there can be none for the patterns, for the reason, as is stated, that they are not “ machinery, ” and consequently the clause of the agreement retaining title in the vendor does not apply to them.
By the terms of the contract, the plaintiff agreed to sell to the defendant’s assignors “a certain amount of machinery, and all patterns pertaining to the lock business. * * * Said machinery shall be the property of said Brewer * * * until paid for. * * * And the Clark Manufacturing Company agree to make the above-described purchase upon the conditions therein set forth and recited.” It is now argued that the word “machinery” does not include the patterns, which were valued at $3,400 of the original purchase.
An attentive perusal, however, of the contract leads quite irresistibly to the conclusion that if the sale was conditioned in any part, and the title retained by the seller to 621 any of the property until paid for, such condition and retention of title related to the whole of the property transferred.
This obvious intention of the parties would overcome the restricted meaning given by the appellant to the word “machinery,” and bring the patterns within its scope, even though, except in a metaphorical sense, the patterns may not be machinery. But they clearly are a part of the machinery. The word was here used in its most comprehensive sense, and included all the devices, tools, and implements used in the manufacturing business for which they were bought. Buchanan v. Insurance Co., 61 N. Y. 33.
It is also claimed by the appellant that a written certificate signed by the plaintiff on the 21st day of October, 1887, six months after this action was begun, to the effect that the payments which had been made by the purchasers had been- applied, first, on the merchandise, and, secondly, on the patterns, the surplus to apply on the residue of the indebtedness, shows that the patterns have been paid for, and that, consequently, title to them passed absolutely to the Clark Manufacturing Company.
But such certificate, in the absence of some agreement that title to certain classes of the property should become absolute when a given amount of the purchase money had been paid, which is nowhere shown, is meaningless, and has no bearing upon the question. The case is not materially different from the record of the former appeal. It follows, therefore, in pursuance of such previous decision, that the judgment and order appealed from should be affirmed. Dwight, P. J., concurs.
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