Vose & Co. v. Stickney

By the Court Flandrau, J. The complaint in this case alleges that the Plaintiffs, on the 30th day of June, 1859, were the owners of and had in their possession certain personal property, which is described, and alleged to be of the value of fifteen hundred dollars. It then charges that the Defendant, on said 30th day of June, at Stillwater, &c., wrongfully took and carried away said property, and converted the same to his own use, and demands judgment for the value thereof. The answer of the Defendant first takes issue upon all the facts stated in the complaint, then alleges that the Defendant is the sheriff of Washington county, and had an attachment at the suit of Shear, Packard & Co., against the property of Gapron & Morris. That he seized certain property, describing it, as the property of Gapron & Morris, by virtue of the attachment, and alleges the property to belong to the Defendants in the attachment, and to have been in their possession [78] when he seized it, and that such taking is the same mentioned in the complaint. The reply reaffirms the charges in the complaint. it appears from the evidence that in April, 1858, Oapron & Morris, being indebted to the Plaintiffs, Yose & Company, executed a chattel mortgage upon certain personal property in their store, in Stillwater, which was the same as that mentioned in the complaint, together with other property. In 1859, June 6th, the agent of the Plaintiffs called on Oapron & Morris, and took possession of the property, but did not remove it. At the same time they entered into an arrange-rnent with Oapron & Morris, by which the latter were to sell the goods for them and account to them for the proceeds up to a certain sum, and retain all they received over that amount as their commission. On the re-deli very of the goods to Oapron & Morris, they executed the following written receipt, which expresses the terms under which they held and were to dispose of them : “ Received of Messrs. Vose & Co., of Albany, New York, the goods, wares, and merchandise mentioned and described in the foregoing pages (referring to an inventory,) to be by us sold for them, upon commission, and the avails thereof, not exceeding the prices specified for said articles, we agree to account to and pay over to said Yose & Co., or their agent or attorney, on demand, and the excess of the avails thereof, on sale, -over and above the prices above designated, to be retained by us as our commission. Capeón & Moeeis.” u June 6, 1859.” The amount of the goods, as by the inventory made, was $1,015 53. On the 30th day of June, 1859, the seizure under the attachment was made by the Defendant. The Plaintiffs had a verdict for $1,374, and, on motion for a new trial, the Court set aside the verdict, and granted it. The appeal is from that order. There are only two points in the case that need consideration by this Court : First. — Whether the Plaintiffs could maintain an action against the sheriff for the seizure of the goods from the pos [79] ■session of Caprou & Morris, without demanding them, or showing that the sheriff 'had notice in some way that they were the property of the Plaintiffs. Second. — "Whether the written stipulation iinder which Ca-pron & Morris held the goods from the Plaintiffs did not give them such a special property in them as amounted to a levia-ble in! erest. There are cases that hold that a Sheriff cannot be subjected to an action for seizing goods in the hands of a debtor, unless they are demanded by the owner, or the Sheriff had notice of the real ownership before he seized them. See Danmiel vs. Gorham, 6 Cal. Rep., 43; Taylor vs. Seymour, 6 Cal. Rep., 512; Riley vs. Scannell, 12 Cal. Rep., 73; Bond vs. Ward, 7 Mass., 123; Shumway vs. Rutter, 8 Pick., 443. These cases also hold that where the goods of third parties are mixed with those of the debtor, and are seized by the officer, the latter is entitled to similar protection. This rule is founded upon the fact that possession is prima facie evidence of ownership, and that he who allows his property to remain in the possession of third persons, must overcome the presumption arising from such possession. There is much reason in the rule, and it is frequently acted upon in regard to chattels under mortgage. Up to the year 1860, where a mortgagor of chattels remained in possession, the mortgage was held to be prima facie fraudulent, as against creditors, and since that time all mortgages not accompanied with an actual and continued change of possession of the chattels mortgaged, are absolutely void as against creditors, unless properly filed and proven to have been made in good faith., This question has never been directly presented to us for decision before. We are of opinion that in such cases, where the possession is accompanied by the exercise of acts of ownership over the property by the party in possession, a demand or notice to the Sheriff is necessary to subject him to an action. There is some evidence here that some of the goods were marked in the name of “ Yose & Go.”, and also that there was a small sign on the side of the door of “ Yose & Go.” or u Gapron & Morris, agents for Yose & Go.”, and a similar one on the inside of the store. The evidence in regard to the signs is from the Sheriff himself. [80] There was also an attempt made by the Plaintiff to show that the Sheriff was forbidden to make the seizure on flie ground that the goods were the property of the Plaintiffs, but it was ruled out, on the ground of not being a proper cross-examination, which ruling was correct, and at all events discretionary, it being merely as to the order of the proof. The attempt was not renewed. From all we can collect from the paper books, it would seem that the Judge entertained the same view of the law as to notice and demand, which we have above laid down. Yet he refused, on the request of the Defendant, to charge the Jury to that effect fully, and the. charge, as given, leaves the question in great doubt. Upon this branch of the case the Defendants were, we think, entitled to a new trial. At all events, the case, as it comes to us, leaves so much doubt upon the question as to whether the Defendant had the law given to the Jury correctly, that we would not cut off the re-investigation, the Court below having granted it. In regard to the relations that arose between Yose & Go. and Capron & Morris, under the receipt upon which the goods were delivered to the latter, we think they were merely the agents of Yose & Co., to sell the goods, taking the chances of obtaining more than the inventory prices as their commission. The interest of Capron & Morris in the goods, if any, depended upon a contingency,.and was compensation for services yet to be rendered; and its ultimate acquisition by them rested very much upon their personal skill in the sale of the goods, although their interest was such that they might have defended their possession against wrong-doers and intruders; still it was not, in our opinion, such an interest as could be taken in execution. Their principals could clearly maintain an action against any one who appropriated the goods. The new trial was properly, under all the 'circumstances, granted, and the order is affirmed.