Morris v. Hyde

[356] The opinion of the court was delivered by Phelps, J. The rule which requires -a substantial visible change of possession, in order to enable the purchaser of a chattel to hold it against the attaching creditor of the vendor, is too well settled in this State, by repeated adjudications, to admit of further discussion. The possession taken, must be such as will indicate to the world at large the change of ownership. A mere temporary change, if the property revert immediately into the possession of the vendor, is not sufficient. In this case, we are of opinion, that the temporary possession of Walker, as agent of the plaintiffs was not such as answers the requirement of the law. Had the horse been returned to the possession of Wilson, with the assent of the plaintiff, it seems to be admitted, the title of 'the plaintiffs could not be sustained. Bu t it appears in this case, that such assent was not had, and it is argued, that the act of the agent, being unauthorized by the plaintiffs, they are not to be affected thereby. it is true, as a general rule, that a party is not to be made responsible for any positive act of another,[unless done by his authority of direction, express or implied. But it is also true, that where an act is necessary to consummate or perfect the right or title of a party, and such act is omitted, through the neglect or disobedience of an agent, the party who commits his rights to the fidelity of such agent, must bear the consequences. In this case, it was the duty of the plaintiffs to see that their purchase was followed by a sufficient change of possession, and if they entrust the business to an agent, they are responsible for the agent’s fidelity. Had th e possession been taken and retained by the plaintiffs, in such manner, and for such length of time, as would have answered the requirements of the law, and the property bad then been entrusted to the vendor, temporarily and for a special purpose, the case would have fallen within the doctrine of Farnsworth vs. Shepard, cited in the argument. Judgment reversed, and cause remanded to the county court.