Cameron v. Crouse

Whether in the aggregate the total lumber consigned and actually sold was more or less than the total advances we are not informed by the submitted case. We proceed, however, upon *393the theory that there is a balance due the consignees for advances, or what is the same tiling, for the. purposes of this discussion, that for their liability upon their notes advanced to the consignors, the consignors still owe them indemnity. The advances consisted of the notes of the consignees, in respect to which, as between consignor and consignee, the consigned lumber or its proceeds was the primary fund for their payment. (Hidden v. Waldo, 55 N. Y. 294.) If that fund should prove insufficient the consignors should make good the deficiency, since they would have received greater advances than they have furnished indemnity for. (Id.) Patton & Co., the consignees, as makers of the notes, are, as between these parties, liable thereon as sureties, but as between them and the l)onafide holders of the notes, they are liable as makers. (Id.)

The title to the lumber was in the consignors, subject to the lien of the consignees for advances (Commercial National Bank of Penn. v. Heilbronner, 108 N. Y. 439; Baker v. New York Nat'l Exchange Bank, 100 id. 31; Moore v. Hillabrand, 37 Hun, 491), and the defendants, receivers of the consignors, succeeded to their title thus burdened with the lien. (Code Civ. Proc. §§ 2423, 1788.)

The plaintiff, the assignee of the consignees, succeeded to that lien and can enforce it. (Francklyn v. Sprague, 10 Hun, 589.) He is not, however, the factor or agent of the consignors since the consignees could not, by their general assignment, delegate their agency. (2 Kent’s Com. 643.) The balance of the account, upon the whole transactions, will show to what extent Patton & Co., the consignees, had a lien. (Enoch v. Wehrkamp, 3 Bosw. 398; Edwards on Bailments, § 368.)

We answer the questions submitted to us by saying that the defendant receivers and not the plaintiff are the owners of the lumber, but that the plaintiff has a lien thereon to the extent of the unpaid advances made upon all of the consigned lumber;, that the defendants are not entitled to take possession of such lumber until they discharge such advances, which they may do by paying upon the outstanding notes the amount thereof within sixty days, and then they may have possession of the lumber. Whether such payment should be made upon the notes pro rata or preferably, or otherwise, may be determined in the due course of the receiver’s administration.

*394If such payment be not so made or the advances satisfied within sixty days, the plaintiff, who meantime may retain possession of the lumber, may foreclose his lien thereon. If an accounting shows the advances satisfied, then the defendants, the receivers, may immediately take possession of the lumber. Costs of both parties to be paid out of the fund.

It is probable that the parties will need to file an additional statement of facts before perfecting judgment, and leave to do so is granted.

All concurred.

Judgment upon submission that title to the lumber is in the defendants, subject to the lien of the plaintiff for unpaid balance of advances upon all the lumber consigned. Order to be settled by Landon, J.