Paine v. Young

Robinson, J., delivered the opinion of the Court. James Young, Jr., conveyed to the appellee, the stock of carriages and wagons, finished and unfinished; and also the materials then being in his carriage factory. The property was left in the possession of Young the bargainor, and the unfinished carriages were subsequently finished by him. Whether all the materials used in completing the carriages were the materials included in the bill of sale, or were in part bought by Young, the bargainor, after the date of the bill of sale, the evidence in the record is somewhat conflicting. But this question in the view we take of the case is quite immaterial. Afterwards the appellants recovered a judgment against the bargainor, - and sold under execution ■ the carriages mentioned in the bill of sale. This suit is brought by- the appellee, to recover damages for the unlawful seizure and sale of the carriages by the appellants. And it is insisted [319] on the part of the defence, that if the carriages were finished in part with the materials included in the bill of sale, and in part with materials furnished by the bargainor in the hill of sale, with the acquiescence of the appellee, and that there was such a commingling of property as to make it impossible to identify or separate the materials used, that under such circumstances the plaintiff was not entitled to recover. And the decision in Hamilton vs. Rogers, 8 Md., 321, is relied on in support of this contention. But that case differs' widely from the one now before us. There Rogers mortgaged not only his stock and materials then on hand, but also all the stock and materials which he might subsequently purchase in the prosecution of his business. And the Court held: 1st. That the mortgagee could not maintain an action at law against a judgment creditor of Rogers for selling under execution, goods purchased by Rogers after the date of the mortgage, upon the ground that one cannot sell that which has not either actual or potential existence at the time of the sale. 2nd. That the burden of proof was upon the mortgagee, to show that the goods sold under the execution, were on the premises at the date of the mortgage. 3rd. Where property mortgaged is commingled, with that subsequently acquired by the mortgagor, it is presumed to he done with the mortgagee’s permission, and if it he so intermixed as to prevent separation or identification, the rights of third parties are not to be affected thereby. But here the sale was of a subject-matter existing in specie, and in the possession of the bargainor. The contract of sale was an executed contract, and the title to the carriages, whether finished or unfinished, passed to the appellee upon the execution and delivery of the hill of sale. The mere fact that parts of the materials used in finish [320] ing the carriages were furnished by the bargainor, would not in itself operate to defeat the title of the appellee as purchaser under the bill of sale. How fa-r he might be liable to the bargainor, if such materials were furnished with his acquiescence is another question. Be that as it may, it did not justify the appellants in selling the carriages under an execution against Young, the bargainor. There was no error therefore in refusing the several prayers offered by the appellants. (Decided 28th June, 1881.) By the prayer offered by the appellee and granted by the Court, his right to recover was based upon the finding by the jury, that all the materials used in finishing the carriages were furnished by the appellee. This he was not obliged to prove. The appellants however, have no right to object to an instruction which was prejudicial to the appellee and not to themselves. Eor these reasons, the judgment will be affirmed. Judgment affirmed.