Black v. Bogert

Headnote

The complaint in this action alleged, in substance, that plaintiff having in his possession certain goods pledged to secure a debt due him surrendered them to defendant, subject to his lien, and upon the promise of one Burritt to pay his claim and upon the promise of defendant to pay out of the proceeds of the sale of said goods $1,000 of said claim; that defendant sold the goods and realized thereon about $5,000, but refused to pay the said sum of $1,000.

The referee, by whom the cause was tried, found, in substance, that plaintiff had the goods in his possession pledged as security as alleged by him; that he surrendered possession to Burritt upon his promise to pay plaintiff’s claim; that Burritt, after obtaining possession, transferred the goods to defendant, who was'a commission merchant, to he sold; that defendant advanced thereon to Burritt more than the amount realized from their sale, and that defendant did not take the goods subject to plaintiff’s lien or to Burritt’s promise, and did not himself promise to pay plaintiff $1,000 or any other sum realized from the sale, and as conclusion of law found that plaintiff was not entitled to recover. Held, no error; that plaintiff, as pledgee, could only retain his lien by retaining possession, and when he delivered up possession his lien ceased. {MoFcvrlcmd v. Wheeler, 26 Wend., 467 ; Grimiéll v. Cook, 3 Hill, 485 .)

Other questions as to the reception and rejection of evidence were disposed of on the facts in this case.