Sharp v. Arthurs — 6 Del. 353

Majority

p. 353

Jesse Sharp v. William Arthurs.

Headnote

If a person buys goods and pays for them, but allows another ,to take them and sell them, retaining the entire profits over and above the original cost of them, for his own benefit, they are the property of the purchaser, and are not liable to execution process against the party receiving and selling them.

Replevin for three carriages. The defendant pleaded and justified the taking of the property in the possession of 8. M. Mongar, and as his property, as a constable, under certain writs of execution against him at the suit of P. B. Cooper. For the plaintiff, it was proved that it was his custom to buy carriages for Mongar to sell, and to allow him all the profit he could make on them, for the purpose of assisting him in the business, as his credit was insufficient to enable him to procure them without the plaintiff’s aid and friendship, and that Mongar had made known to several persons the fact that he obtained the car

p. 354

riages he was selling in this way and upon these terms, and that they belonged to the plaintiff. Their mode of conducting the business was for Mongar, who had been a carriage-maker, to go round and select from the carriage factories in Wilmington such vehicles as would suit his trade, and for the plaintiff then to order them to be delivered to him, and to pay for them, which he sometimes did on the delivery of them to Mongar, and sometimes by giving his own note at sixty or ninety days for them.; the only object of the plaintiff being to befriend, and enable him to support his family by the profits arising from the sale of them, and to prevent his creditors from seizing them as his property. On the other hand, the defendant proved, by several persons who had purchased carriages of Mongar, or had other business transactions with him, that he had sold them as his own, and that they had never heard of the plaintiff’s having any interest or property in them, and that on one occasion he had disposed of a sulky in payment of a debt due from him personally; and by another witness, that he had cashed, notes, for him to a considerable amount, which he had received in payment for carriages sold by him.

The counsel for the plaintiff

cited 9 Johns, 197 ; 4 Watts & Serg. 197 ; 2 U. S. Dig. 1848; Story on Agency, 291.

The Court,

charged the jury: That the question involved in the case was solely a question of fact, to be determined by them from the evidence which they had heard. If, therefore, they were satisfied from the evidence that the carriages in question were the property of the plaintiff, and that his money was actually paid for them, and that Mongar was merely to receive and sell them, and repay the plaintiff the original cost of them, retaining the profit for his own benefit and the support of his family, the plaintiff was entitled to recover. But if they should believe, from the facts proved, that Mongar in fact paid for them, or was to pay for them with his own

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money, or out of the money accruing from the sale of them, and the plaintiff’s name was only used to obtain credit with the makers of whom they were purchased, and to prevent their seizure by Mongar’s creditors, then their verdict should be for the defendant.

Smithers, for plaintiff.

Ridgely, for defendant.

Verdict for the plaintiff.