Caldwell v. Bartlett — 10 N.Y. Super. Ct. 341

Majority

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Caldwell and Others, Respondents, v. Bartlett, Appellant.

Headnote

One who tortiously possesses himself of another’s chattels, without a delivery from, or the consent, express or implied, of the true owner, can vest no title to them in a purchaser, though bond Jide. But if the owner delivers possession, under a contract of sale, intending at the time to then part with his property in them, any one bond fide purchasing and taking a delivery of them from the first vendee, will obtain a title valid as against the first vendor, although the latter may have been induced to sell and deliver them, by fraud or false pretences, which would authorize him to disaffirm the contract, and reclaim them from the first vendee.

Any one who, in the ordinary course of business, makes advances, or incurs a legal liability, on the faith of the fraudulent possessor being the true owner, is entitled to the protection which the law extends to a bond fide purchaser. If a sale of chattels is conditional, an unconditional delivery will enable the pur- ■ chaser to give a valid title to any one who buys from him in good faith and for value! "

When a delivery is apparently absolute, and without any cotemporaneous decla- '•" rations qualifying it, the onus of proving the delivery conditional, rests upon the vendor. If no such proof is given, the delivery will be deemed absolute, and . . title to the goods will vest in the purchaser.

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It seems, that in case of a sale and delivery, even where the delivery is conditional, a bond fide purchaser from the person to whom such delivery was made, will acquire a valid title.

A master of a vessel, who receives in good faith, on board of his vessel, goods, from one who has obtained a sale and delivery of them by a fraud, that would authorize the vendor to disaffirm the sale, but without notice of the fraud, or of any facts and circumstances which should have excited the Suspicions of a man of ordinary care and caution, and stows the goods, and issues a bill of lading, binding him to deliver the goods at a remote port, stands in the position of and is entitled to the protection which the law allows to a bond fide purchaser,

(Before Oaklet, C. J., Campbell and Bosworth, J.J.)

May 5;

May 20, 1854

This action came before the court, upon an appeal from a judgment entered on the report of a referee. The action was brought to recover of the defendant, who was master of the ship Alert, $265.89, the value of goods alleged to belong to the plaintiffs, and to have been converted by the defendant to his own use.

The referee, to whom the action was referred, made the following report, viz.:—

Having been appointed sole referee in this action, and dh rected to hear and decide the whole issue therein, and having been attended by the counsel of both parties, and having heard their respective proofs and allegations, I find the facts to be as follows:—

1. One Reed bargained with one Johnson for the purchase of the goods described in the complaint, at Johnson’s store, in Hew York, for $218.19, payable on delivery. While Johnson was absent from his store, Reed went there and took away, the goods, without paying for them, and without Johnson’s'know? ledge or consent, and immediately put them on board a ship, then loading at Hew York, for San Francisco, whereof the defendant was master.

2. Reed took from the defendant a bill of lading for the goods, as shipped by John Brown, which name he assumed.' The bill was for sundry articles, including these goods, stating the receipt of them from John Brown, at Hew York, February 11th, 1851, on board the ship, to be delivered to Schultz, and Griffin at San Francisco, on payment of freight, primage, and average.

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3. The defendant stowed the goods in his cargo for the voyage, without knowledge of the fraud on Johnson which had been practised by the shipper; but on Reed appearing to obtain the bill of lading, his peculiar and excited manner caused' some suspicion on the part of the defendant that something was wrong about him.

4. On bargaining for the goods, Reed pretended that he intended the goods for re-sale in New York; but his actual design was to obtain them without payment, and ship them to California’; and he was then engaged in fraudulent purchases from other parties in New York, and shipping their property by the same ship; and immediately after obtaining the bill of lading, he absconded.

5. After the goods were stowed in the ship, and the bill of. lading issued, as aforesaid, Johnson made a sale of the goods to the plaintiffs.

6. The plaintiffs thereupon called on the defendant at the, ship, made known their right to the goods, and demanded them-from the defendant. The defendant refused to deliver up the goods, on the ground that he had given a bill of lading for, them. The plaintiffs thereupon offered to indemnify the defendant against the bill of lading, and against all claims and damages on the part of the shipper. The defendant further refused to deliver up the goods, on the ground that it would cause great labor and expense to overhaul the cargo and take out these goods. The plaintiffs did not offer to pay the defendant for any such labor or expense, but demanded the goods, which the defendant refused to deliver. Shortly afterwards the defendant sailed on his voyage with the goods on board his ship.

7. It does not appear that the bills of lading ever passed out of Reed’s hands, nor that Schultz and Griffin had any interest in the consignment of the goods.

. Upon the foregoing facts, and the matters admitted by the pleadings, my conclusions of law are as follows:—

1. Reed acquired no title to the goods, nor any right of possession thereof; and he was wrongfully in possession of them when he delivered them to the defendant.

2. The sale by Johnson to the plaintiffs passed to them a

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good title to the goods, and they became the true owners, and entitled to immediate possession.

3. The defendant acquired no title, right, or lien, in the goods, as against Johnson or his vendees, the plaintiffs, by means of receiving the goods from Eeed, stowing them in the ship, giving out the bill of lading, and all the other facts above mentioned.

4. The offer of an indemnity is a sufficient answer to the objection that a bill of lading had been issued, even if it had been transferred to third parties.

5. The plaintiffs’ title to the goods having arisen after the goods were stowed in the ship, the previous act of stowage was neither a tort of the defendant, of which the plaintiffs can take advantage in this action, nor a service rendered to the plaintiffs, for which the defendant can demand any consideration from the plaintiffs. If the defendant had submitted to the plaintiffs’ demand for the goods, the overhauling of the cargo and taking the goods out must have been the duty of the plaintiffs, and at their own expense; and if the defendant had taken such labor on himself it would have been voluntary, and he could not compel the plaintiffs to employ him in such service,- or to pay therefor. The refusal to deliver the goods, unless the plaintiffs should employ the defendant to take them out, was: therefore a conversion of the goods; and the sailing of the ship was also a conversion.

6. The goods were of the value of $218.19. The cost of taking them out of the ship should not be deducted ; because the goods were already stowed, and might have been "shipped on the plaintiffs’ account, if their title had been submitted to; and because the value of the goods, to the master of the ship, was no less for their being packed in his cargo. The interest on the value of the goods, from the time of the conversion to the date of this report, is $34.36, making a total sum of $252.55.

I, therefore, decide the whole issue in favor of the plaintiffs, and report that there is due from the defendant to the plain-: tiffs, the sum of two hundred and fifty-two dollars, fifty-five, cents, and they are entitled to a recovery of the same with costs of this action.

All which is respectfully submitted.

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WilUam Johnson, the person named in the referee’s report, as the one with whom Beed bargained for the goods, was examined as a witness on the part of the plaintiffs, and among other things, testified as follows: I know the marks and numbers, because I marked the packages, seven or four or five days before, perhaps; I so marked them by Beed’s direction; at the time I so marked the goods, they were at No. 55 Frankfort street; that was my place of business ; it was not the place of business of the plaintiffs; the goods were mine at the time I marked them; the goods, I think, were marked “ S. & G-.” by direction of Beed; Beed told me he was going to sell them to a house in Liberty street, when he first ordered them; I did not deliver the goods to any one; Beed took them away when I was absent; I know the goods were delivered to Beed, from my foreman telling me so; that is the way I know it; he told me Beed had got the goods ; there was an agreement between me and Beed for the sale of the goods—to Beed before I marked them; the sale was to be for cash; I was to have the prices named in the invoice; my foreman made out the invoice in my absence, and when Beed called, he gave him the invoice and the goods; I entered the goods in the day book; I made the entry some two or three weeks previous to his' getting them; at the time Beed ordered the goods.

Cross-examined—The sale of the goods to the plaintiffs was in writing; I had not given my foreman any direction not to deliver the goods to Beed, without cash; I was temporarily absent, and left no instructions; my foreman was in the habit of delivering goods in my absence; the goods were made up and completed—I mean they were boxed up the morning they went away; I marked them during the morning of that day; Beed had a store at that time, at the corner of Catherine and Henry streets; I called there1 on the Monday following,. tw.o days after the delivery of the goods; I had not sent any bill for the goods before that; I had not sent Beed any message to return the goods.

On the appeal, it was insisted by the appellant, that the referee erroneously found the fact, that Beed took the goods from the store of Johnson, in the absence and without the knowledge

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or assent of the latter. The only evidence on that point was the testimony of Johnson himself.

Wm. H. Leonard, for appellant, made the following points.

I. The appellant is entitled to the same protection which the law would afford to a bond fide purchaser of the goods in question, from the person who made the shipment thereof. These goods were received by the appellant on board his ship, as a common carrier, entirely in good faith, without any knowledge that the shipper had committed a fraud in the purchase thereof; and before the respondents had acquired any title or right of action in relation thereto, the said goods were stowed in cargo, and a large amount of other goods also received and stowed over them, in such manner that the goods in question could not be delivered without great expense and detention of the ship in unlading to make delivery thereof, beyond even the value of the goods demanded, (a.) The appellant was entitled to payment or indemnity against the expense of unlading the goods, and the demurrage for the detention of the ship, before he could be required to deliver them to the claimants. (b.) Hor was the appellant under any obligation to allow the respondents to overhaul and displace the cargo already stowed, without payment or indemnity against the expense of replacing such cargo as should be removed, and for the detention of the ship. (c.) Johnson, the vendor, or his agent and foreman, delivered these goods to Lucius F. Reed, with the intent to make sale thereof, (d.) Ho felony was committed by Reed in making the purchase, (e.) The fraud of the purchaser in obtaining the goods, if not felonious, gives no right, to rescind the sale and reclaim the goods from a subsequent purchaser in good faith (Patrick v. Parker, 5 T. R. 718; Mowrey v. Walsh, 8 Cowen R. 238; Williams v. Merle, 11 Wend. R. 80 ; Root v. French, 13 Wend. R. 570, 572; Andrew v. Deitrich, 14 Wend. R. 31; Saltus v. Everett, 20 Wend. R. 280; Hoffman v. Carow, 22 Wend. R. 285; Vide Opinion of Chan., p. 292; Opinion of Senator Verplanck, p. 318, 319; Opinion of Senator Furman, p. 307; Ash v. Putnam, 1 Hill R. 302 308; Hoffman, v. Noble,

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6 Metcalf R. 68). (f.) The refusal to deliver the goods was not, under these circumstances, a conversion thereof, (g.) The motion to dismiss the complaint ought to have been granted.

II. There is no evidence to warrant the fact found by the referee, “ that Eeed took away the goods without paying for them.” This fact cannot be presumed, and is essential to the respondent’s case.

III. The goods in question, at the time of the pretended sale thereof, by Johnson to the respondents, on the 14th of February, 1851, were not the subject of a sale by him (Stedman v. Reddick, 4 Hawks. R. (N. C.) 29). (a.) The goods were not in the possession of the pretended vendor. The respondents also knew that they could not be delivered without great injury to the appellant, who for that reason claimed the possession thereof until indemnity was given. (b.) Johnson had a mere chose or right in action (2 Blackstone’s Com. 396, 397). (c.) The receipt and stowing of the goods was not an injury to these respondents. Whether the demand thereof was made by the vendor or by the respondents, and whether before or after the sale of 14th February, 1851, the right of action existed before that time, and it was known that it would be complete by a mere formal and technical demand. A change in the party maldng the formal demand, did not convert the case into a tort against these respondents, so as to give them a right of action in their own names (Kelsey v. Griswolds, 6 Barb. S. C. R. 436). The action does not arise in contract, and is not by the amended code assignable.

IV. The referee erred in excluding the testimony of the appellant. Ten days’ notice of the intention to examine Johnson not having been given, as required by the Code, in case the assignor is offered as a witness, his evidence was inadmissible, (a.) Johnson would not before the Code have been a competent witness for the respondents to prove fraud in the sale of the goods (Rea v. Smith, 19 Wend. R. 293 ; Gardiner v. Tubbs, 21 Wend. R. 169).

V. The referee erred in admitting evidence of other eotemporaneous purchases of goods by Eeed for which he had not made payment. Proof that the goods in question had not been paid for should have been first offered. The referee has in

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ferred non-payment from cotemporaneons acts. The evidence of Hoppock and of Gustin, was immaterial and irrelevant. The evidence of what was said to the witness, Morris, and to others, by persons at the store, then recently occupied by Reed, was hearsay and inadmissible. The exceptions taken at the trial, in respect to the evidence above mentioned, are well taken.

VI. The report is erroneous, and.in many respects immaterial, inconclusive, and against the law and the evidence. The first, third, and fourth paragraphs of the conclusions of fact are erroneous. The fifth subdivision of the conclusions of law in said report, is, in great part, argumentative, and deciding upon positions of law which were never assumed. ■

VH. The • report of the referee ought to be set aside, the judgment reversed, and a new trial granted, to be had before the court.

E. Fitch Smith, for respondents, argued the following points.

I. The several facts found by the referee under the- first seven subdivisions of his report, were fully established by the evidence in the case, and the finding of the referee on conflicting evidence upon those several facts is conclusive. This court should not set aside the report upon any question-of fact found by the referee.

II. The evidence shows, and the referee has found the fact, that Reed purchased the goods with the preconceived design not to pay for them, and that vitiates the sale, and Reed, acquired no title to the goods. (Thompson v. Rose, 16 Conn. R. 81; Reid v. Hutchinson, 3 Campbell R. 352 ; Earl of Bristol v. Wilsmore, 1 Barn. & Cress. 514; Hawes v. Crowe, R. & Moody, 414; Ferguson v. Carrington, 9 Barn. & Cress. 59 ; Hitchcock v. Covell, 20 Wend. 167 ; Carey v. Houghtailing, 1 Hill, 311 ; Ash v. Putnam, 1 Hill, 302 .)

III. The contract with Reed for a sale was for a sale for cash on delivery. The conditions of the sale were never complied with, nor were the goods ever weighed by Johnson; on this ground Reed acquired no title to the goods. 1. The evidence shows, and the referee has found, that Johnson did not deliver

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the goods to Reed, and that Reed took them in the absence of, and without Johnson’s knowledge and consent, and without a compliance with the condition of the sale. 2. There was no competent evidence that the foreman did deliver the goods, or that he knew of the conditions of the sale. If there had been any such evidence, the foreman by an act of delivery could not be deemed as having waived a condition of which he had no knowledge. 3. Whether there was an unconditional delivery by the vendor was a question of fact, and the referee has found that there was not, and that is conclusive. (Smith v. Lynds, 1 Seld. 45.)

TV. The insertion of the name of Shultz and Griffin in the bill of lading, did not give them any property in the goods until delivery of the bill of lading, or affirmative evidence that the goods were purchased on their account, that disposes of all claim from the consignees or their assigns. (Williams v. Allen, 12 Pick. 300 ; Lawe v. De Wolf, 8 Pick. 101 ; Buffington v. Curtis, 15 Mass. 53 ; Abbott on Shipping (Story & Perkins’ ed. 1850), 409, note 1.) The tender covered all claim on the ground of bill of lading.

V. So long as the bill of lading remained in the hands of Reed no one but Reed could obtain the possession of the goods, and it would have been a good and perfect defence on the part of the carrier that Reed was not the true owner, and, therefore, not entitled to the goods. (King v. Richards, 6 Whart. R. 418; Robinson v. Baker, 5 Cushing, 145 ; Bates v. Stanton, 1 Duer, 29 ; Wilson v. Anderton, 1 Barr. & Ad. 450 ; 20 Eng. Com. L. 426; Handerson v. Wilcock, 9 Bing. 378; 23 Eng. Com. L.)

YI. The defendant having claimed the right to detain the goods on the ground of having delivered a bill of lading, by that act assumed to protect and hold the goods for the fraudulent vendor; that act was itself a conversion. (Thompson v. Vail, 2 Carr. & Payne, 334; Thompson v. Rose, 16 Com. R. 84; Wilson v. Anderton, 1 Barn. & Ad. 450; Watts v. Potter, 1 Mason, 77.)

VII. Ho tender of the expenses incident to receiving and stowing the goods, or of expenses incident to delivering the goods, was necessary in this action, even if under other circum

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stances the defendant was entitled to have them paid. 1. Because the defendant claimed to retain them upon another distinct ground, that of having delivered a bill of lading. ( Watts v. Potter, 1 Mason, 81; Thompson v. Rose, 16 Conn. R. 84 ; Davis v. Vernon, Ad. & Ell. 448, 49.) 2. Ho claim at the time of demand was made for receiving and storing the goods, hence if defendant had a lien on that ground, he must be deemed as having waived it. (Boardman v. Sill, 1 Campbell R. 410, note.) 3. If the claim on this ground was sufficiently specific, thén the tender of all loss or damage that might arise from a delivery was broad enough to cover loss incident to receiving and stowing the goods.

Till. The plaintiff was not bound to tender the defendant anything for the trouble and expense incident to a re-delivery of the goods. 1. The plaintiffs, if the defendant had assented to their retaking the goods, wonld have had' to perform that service. 2. The plaintiff was not bound to employ the service of the defendant for that purpose. 3. Because the defendant claimed an indemnity against all the expenses incident to getting out the goods, when much of that expense was incident to undoing much which the defendant had done after he had enough to have put him upon inquiry. 4. The defendant claimed a right to detain the goods upon the other and distinct ground that he had given a bill of lading, so that the tender would have been useless. The claim to detain the goods on the ground of the bill of lading, dispensed with a necessity of a tender of these expenses, even if the defendant otherwise would have been entitled to have such expense paid or tendered. 5. The defendant had no right to a lien upon the goods for any prospective service in reference to them after notice of plaintiff’s right.

IX. The defendant was not entitled to the protection of a bona fide purchaser. 1. Had the defendant innocently received the goods from Reed, who was a wrongdoer, he.would not have had a lien upon them for the expenses incident to their receipt and storage. 2. His possession was without the consent of the owner, express or implied; and under such circumstances a common carrier is not entitled to protection as a bond fide purchaser. (Ro binson v. Baker, 5 Cushing, 137; Fitch v. New-

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berry, 1 Dougl. Mich. R. 1; Angell on Carriers, § 365 to 367.) 3. If under ordinary circumstances a carrier is entitled to protection as a bond fids purchaser, the evidence discloses the fact, and the referee has found the fact, that the defendant, at the time he delivered the bill of lading, from Reed’s peculiar and excited manner, had some suspicion that something was wrong. This was sufficient to put the defendant on the inquiry, whether the shipper was in fact the real owner, or whether he was shipping the goods fraudulently. A neglect to inquire under such circumstances was equivalent to positive notice, and deprives the defendant of the privilege of a bond fide purchaser. (Pringle v. Philips, 5 Sandf. R. 157, and cases there cited, especially pages 168,169, 172, 173.)

X. The evidence in reference to other cotemporaneous fraudulent purchasers was admissible for the purpose of proving the fraudulent intent of Reed in the purchase. (Thompson v. Rose, 16 Conn. R. 80 ; Carey v. Houghtailing, 1 Hill, 311 ; Hawes v. Dingley, 17 Maine R. 340 ; Pierce v. Hoffman, 24 Vermont, 525; Greenleaf on Evidence, vol. iii. § 15, p. 16.)

XX Upon the question of fraud it was competent to show that all the property Reed left behind was not sufficient to satisfy his debt.

XII. The evidence that Reed had absconded was admissible, and for that purpose it was competent to prove what was learned upon inquiry, at his last place of business, from persons in charge of his store. The fact was, however, fully proven without that evidence. First, Morris proves that he seized and sold his goods, and that Reed never appeared. Johnson proves that he went to the store, and Reed was not in, and that he endeavored to find him after he got the goods, and could not.

XHI. Should the court arrive at the conclusion that the referee admitted improper evidence, which we believe it cannot, even then, as the cause is before the court upon a case containing the whole evidence, the court, if satisfied that substantial justice had been done, should not, for that reason, set aside the report of the referee.

If the evidence establishes the fact found by the referee, that Reed took the goods from

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the store of Johnson, in the absence and without the knowledge or consent of the latter, the plaintiffs were entitled tq the goods, on demanding them. If they were so taken, the taking was a naked trespass. One who tortiously possesses himself of another’s goods, without a delivery from, or the consent, express or implied, of, the true owner, can vest no title in even .a bond fide purchaser. (Saltus v. Everett, 20 Wend. 267 , 278-9; Hoffman et al. v. Carew, 22 Wend. 285 ; Angell on Carriers, § 360-369; Buskirk v. Parrington, 2 Hall, W. S. 561; Collman v. Collins, Id. 569; Robinson v. Baker, 5 Cush. 137 .)

But when an owner delivers possession of chattels, intending at the same time to then part with his property in them, anyone bond fide purchasing them from the person to whom they were so delivered, will obtain a title valid as against the first owner, though he'may have been induced to sell and deliver them by fraud or false pretences, which would authorize him, to disaffirm the contract and reclaim them from the person to whom he had delivered them. (Mowry v. Walsh, 8 Cowen, 238; Parker v. Patrick, 5 J. R. 175; White v. Garden et al., 5 Law and Equ. R. 379; Stevenson v. Newman, 16 Law and Equ. R. 401-408; Rowley v. Bigelow, 12 Pick. 307 ; Hoffman et al. v. Noble et al., 6 Met. 68 ; Colton et al. v. Gage et. al., 13 Illinois R. 610, 614; McMahon v. Sloan, 2 Jones, 283 ; Kingsbury v. Smith, 9 N. H. R. 109 ; Carpenter v. Nixon, 5 Hill, 260 ; Ward v. The People, 3 Hill, 395 .)

. Any one who in good faith advances money, or, in the ordinary course of business, incurs legal liabilities, on the faith of the fraudulent possessor being the true owner, and without any knowledge or notice to the contrary, is entitled to the protection which the law extends to a bond fide purchaser.

It seems that in case of a sale and delivery, even where the delivery is conditional, a bond fide purchaser, from the person to whom the delivery was made, will acquire a valid title.. (Covill v. Hill, 4 Denio, 323 -330; Smith v. Lynes, 1 Seld. 41-48.)

If the sale was conditional, but the goods were delivered unconditionally, the title vested in Reed on the delivery, so' that he could clearly confer title on a purchaser in good faith.. .

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If Reed took the goods as a trespasser, the master to whom he delivered them would not be liable until they had been demanded of. him, and he had refused to allow the owner to take them. The mere receiving then on board of the vessel, when so delivered, would not be a trespass, nor amount to a conversion. (Ely v. Ehle, 3 Coms. 506.)

If the master, when he received the goods on board, had notice of the fraud, if any there was, of Reed, or notice of facts and circumstances which should have put him on inquiry, and which, on reasonable inquiry, ' would have enabled him to ascertain the truth, he cannot claim the protection which the law extends to a bond fide purchaser.

Hence, it is evident that, on the case as now presented, the' rights of the parties depend on the question, whether the. evidence justified the referee in finding that the goods were taken by Reed as a trespasser, without the knowledge or con- • sent of Johnson. If taken by delivery from, and with the knowledge and consent of, anyone authorized by Johnson to make the delivery, theh, in judgment of law, they were delivered by Johnson. The testimony is, that a sale had been contracted on the terms that Reed should pay on delivery. The goods were made up and boxed. They were boxed on the morning of the day they were taken away. They were marked that morning by Johnson. During his absence that day, his foreman, a part of whose duty it was to superintend the delivery of goods, made out an invoice and delivered that and the goods to Reed. So Johnson’s foreman told him. Johnson does not make the foreman say that Reed made any misstatement to obtain the delivery, or that the delivery was made on any condition, nor does he say that what his foreman stated was untrue. The delivery was on a Saturday. On the following Monday Johnson called at Reed’s place of business. He had not previously sent any bill of the goods to Reed, nor any request" to him to return the goods.

From this testimony it is quite evident that the goods were taken by delivery from the foreman of Johnson, whose business it'was to make delivery. The foreman had not been instructed not to deliver without actual payment. Whatever was" done by the foreman, within the general scope of his authority, and

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with his knowledge and consent, was done, in judgment of law, by Johnson, and with his knowledge and consent. If the transaction between the foreman and Reed was no more than Johnson testifies his foreman to have said about it, and what the foreman said took place is all that occurred, then it does not appear that any condition was connected with the delivery, nor what occurred or was said in relation to payment.

It being found that the master received and stowed the goods in good faith, without any knowledge of the fraud practised on Johnson, the plaintiffs, in order to charge the defendant, should establish a clear j/rima fade case of continued property in Johnson, down to the time of the sale- to themselves. Presumptively it was in- their power to have shown what took place at the time of the delivery to Reed. As the delivery was under a contract of sale, we do not see how it can be found that it was upon a condition that would prevent the title passing, or with a clear intent that it should not pass, until payment was made, without proof other than that the goods were delivered, with an invoice of them-, to' Reed, at his request, by a person authorized to make a delivery of them.

When the- delivery is absolute, without any contemporaneous declaration qualifying it, the- &mis of proving the condition rests upon the vendor. If no such proof is given-, the,delivery will be deemed absolute, and the title to- the goods will pass to the vendee. (1 Selden, 45, 46.)

The judgment must be- reversed, the report set aside, and rule of reference vacated, and a new trial ordered with costs to abide the event.

Cases cited

Hitchcock v. Covill 20 Wend. 167 N.Y. Sup. Ct. p. 348
Saltus & Saltus v. Everett 20 Wend. 267 N.Y. Sup. Ct. at 278-9 p. 352
Hoffman v. Carow 22 Wend. 285 N.Y. p. 352