Majority
Judgment affirmed, with costs.—
This is an appeal from a judgment in favor of the plaintiffs against the defendants for $117,719.92 entered upon the report of a referee.. The complaint contains fifty causes of action, forty-nine of which are upon promissory notes given to the plaintiffs by the defendants on account! of lumber. The fiftieth cause of action is for a balance due upon the account for the lumber, for discount paid upon the paper and for money paid for freiglits. The referee found that the lumber which constituted the consideration of the forty-nine notes was a portion of the lumber wliich was the subject of the account set up in the fiftieth cause of action in the complaint, and his decision was based upon that account. The defense of the action was that the notes were accommodation paper and that the lumber, for which the plaintiffs claim, was not sold to the defendants, hut was consigned to them to be sold for the plaintiffs. The lumber was shipped by the plaintiffs to the defendants under a written agreement, which provided for a conditional sale, as the plaintiffs claim, and not for a consignment for sale as the defendants insist. The question arises between the immediate parties to the agreement, and no rights of creditors or bona fide purchasers are involved. It was, however, much more than an agreement for the consignment of goods for sale to the defendants. It was a sale of the lumber, and the obligation of the defendants was absolute whether ib was conditional or not. It was expressly stipulated in the agreement that “all said lumber so shipped and the proceeds of all sales thereof by said second party shall be and remain the property of the said first party until the said lumber so sold shall be fully paid for by said second party to said first party, ana all sums of money received by said second party for the sales of said lumber by him shall be moneys had and received by said first party until a sufficient amount thereof shall have been paid to the said first party by said second party to cancel the indebtedness arising upon the sale of the lumber so sold.” The referee has limited the recovery to the lumber sold by the defendants previous to the fire, and lias not charged the defendants with the lumber which was destroyed thereby. The payment of discounts upon1 the notes of the defendants was a valid' charge against them, as they were given on' account of the lumber. The same is to be said respecting the payment for freight upon’ the lumber shipped to the defendants. As, i therefore, the referee has only charged the' defendants for the value of the lumber! which they sold under the contract, and, as it was provided therein that the money re-1 ceived by the defendants upon such sales of lumber should be moneys had and received by [-he defendants for the plaintiffs, it is quite immaterial whether the sale was absolute or conditional, because the money re-1 ceived upon the sales under the contract be-1 longed to the plaintiffs. The record pro-1 sents no error, and the judgment should be affirmed, with costs.
Brown, P. J., and Pratt, J., concurred in the result