Hart v. Carpenter

The plaintiff was the owner of the cow, the value of which he seeks to recover in this action, and, by an instrument in writing, dated Nov. 5, 1853, he agreed with Alvin M. Bebee, that Bebee should take her into his possession, keep and fodder her, paying himself therefor, by the milk she should yield, and, if at any time, within four months» or at the expiration of that time, he should pay for her thirty-five dollars, she was to belong to him, otherwise he was to return her, in good condition, to the plaintiff. Bebee took the cow under this agreement, but neither paid for nor returned her; on the contrary, he sold her to the defendants, who bought her, in good faith, supposing that she belonged to him.

We think these facts bring the case within the principle recognized in Forbes v. Marsh, 15 Conn. R., 384. The contract'was’ not a sale to Bebee, either absolute, or conditional, but a méfe letting of the cow to him, for the period of four months, with' the privilege of becoming the purchaser, by paying the stipulated price.

*431The cases cited, tending to show that a bona fide sale and delivery, by one who has possession, under a purchase, fraudulently procured, will be protected against the claims of the original owner, do not apply to the case. In that class of cases, it seems to be just, that of two innocent men, he should suffer, who, by his actual sale, though fraudulently procured, has put it in the power of another, to appear to the world, as the real owner, rather than he who has relied on such appearances, in making the purchase. ButBebee never appeared to be the owner of the cow, any more than any other bailee of a chattel, may be said to appear to own it. He had possession, and that was all. Had the defendants made enquiry, as in Forbes v. Marsh, it is intimated it should be made in such cases, they would have learned that Bebee had no title. We are of opinion, therefore, that the case was correctly decided in the superior court, and there is no error in the judgment complained of.

In this opinion, the other Judges, Storrs & Ellsworth, concurred.

Judgment affirmed.