Cameron v. Crouse

LANDON, J. Whether, in the aggregate, the total lumber consigned and sold was more or less than the total advances, we are not exactly informed by the submitted case. We proceed, however, upon the theory that there is a balance due the consignees for advances, or, what is the same thing, for the purposes of this discussion, that, for their liability upon their notes advanced to the consignors, the consignors still owe them indemnity. The advances consisted of the notes of the consignees, in respect to which, as between consignor and consignees, the consigned lumber or its proceeds was the primary fund for their payment. Hidden v.Waldo, 55 N. Y. 294. If that fund should prove insufficient, the consignors should make good the deficiency, since they would have received greater advances than they have furnished indemnity for. Id. Patton & Co., the consignees, as makers of the notes, are, as between these parties, liable thereon as sureties, but, as between them and the bona fide holders of the notes, they are liable as makers. Id. The title to the' lumber was in the consignors, subject to the lien of the consignees for advances (Bank v. Heilbronner, 108 N. Y. 439, 15 N. E. 701; Baker v. Bank, 100 N. Y. 31, 2 N. E. 452; Moore v. Hillabrand, 37 Hun, 491); and the defendants, receivers of the consignors, succeeded to their title, thus burdened [60] with, the lien (Code Civ. Proc. §§ 2423, 1788). The plaintiff, the assignee of the consignees, succeeded to that lien, and can enforce it. Francklyn v. Sprague, 10 Hun, 589. He is not, however, the factor or agent of the consignors, since the consignees could not, by their general assignment, delegate their agency. ' 2 Kent, Comm. 643. The balance of the account upon the whole transactions will show to what extent Patton & Co., the consignees, had a lien. Enoch v. Wehrkamp, 3 Bosw. 398; Edw. Bailm. § 368. We answer the questions submitted to us by saying that the defendant receivers, and not the plaintiff, are the owners of the lumber, but that the plaintiff has a lien thereon to the extent of the unpaid advances made upon all of the consigned lumber; that the defendants are not entitled to take possession of such lumber until they discharge such advances, which they may do by paying upon the outstanding notes the amount thereof within 60 days, and then they may have possession of the lumber. Whether such payment should be made upon the notes pro rata, or preferably, or otherwise, may be determined in the due course of the receivers’ administration. If such payment be not so made, or the advances satisfied, within 60 days, the plaintiff, who meantime may retain possession of the lumber, may foreclose his lien thereon. If an accounting shows the advances satisfied, then the defendants (the receivers) may immediately take possession of the lumber. Costs of both parties to be paid out of the fund. It is probable that the parties will need to file an additional statement of facts before perfecting judgment, and leave to do so is granted. Order to be settled. All concur.