Burbank v. Crooker

Dewey, J. The case shows originally a conditional sale of property to Davis by the plaintiff and Richardson, and under such circumstances as did not vest the property in Davis. This property was transferred by Davis to Knights, with knowledge on his part of the conditional sale to Davis, and subject to all the rights of plaintiff in the same. In this state of the case, the property clearly remained in the plaintiff and Richardson while held by Knights, until the condition was performed. Had a sale been made of individual articles in the ordinary course of business in a country store, the plaintiff might have been estopped to assert any right adverse to such purchaser having placed them in the hands of such dealer with the understanding that they were to be thus used. But the purchase by the defendant Crooker was of a different character. It was a purchase of a stock of goods generally, like any other purchase of personal property, and with only that right of property which his vendor had. The whole doctrine of conditional sales, where the possession is in the vendee and he is apparently the owner, is one rendering purchasers less secure of acquiring a good indefeasible title; but it is well settled, and the purchaser in the present case from Knights takes the usual risk of the right of his vendor to sell this property. Coggill v. Hartford & New Haven Railroad, 3 Gray, 545. Blanchard v. Child, ante, 155. 2. We do not perceive any such delay in enforcing his right as should prejudice the plaintiff. 3. The objection that Crooker had become the owner of the interest of Richardson, and was therefore a tenant in common, will not defeat the action; as one tenant in common has not the [160] -ight to sell the entire property as his own, and if he does, becomes liable therefor in an action of tort. Weld v. Oliver, 21 Pick. 559. 4. No duty devolved on the plaintiff under the circumstances of the case, and the claim made by Crooker, as purchaser of the whole, to designate more particularly the articles in which the plaintiff claimed property. We think the case ought to have been submitted to the jury, as to the goods sold by Knights to Crooker, under the instruction, in matters of law, already stated. Exceptions sustained.