Morey v. Medbury

By the contract of sale in this case, the title passed to the purchaser, subject, however, to the vendor’s right of possession until payment. (2 Kent Com., 492; Higgins v. Murray, 11 S. C. N. Y. [4 Hun], 565, Olyphant v. Baker, 5 Den., 379 Hayden v. Demets, 53 N. Y., 431, Terry v. Wheeler, 25 N. Y., 520, at 525; Burrows v. Whitaker, 15 S. C. N. Y. [8 Hun], 260.)

The decisions of Conway v. Bush (4 Barb., 564); Fleeman v. McKean (25 id., 474); Smith v. Lynes (5 N. Y., 41) will be found to decide the right of the vendor to possession, as against the vendee, until payment; not the question of title, in case of loss.

Suppose, as suggested in the case of Terry v. Wheeler, the property had been such as might have increased — a flock of sheep — and an increase had taken place, whose would have been the increase ? The owners of the flock, of course. And who would have been the owners ? The purchasers.

The judgment should be affirmed, with costs.

I think this case was properly decided by the referee. The evidence authorized him to find that the property was delivered at the depot at the risk of the defendants, and to be paid for before being taken away. The contract was therefore fully performed by the plaintiff, and he was entitled to sue for and recover his pay. The defendants could not have resisted such claim. They were bound to pay, and the retention of the possession of the station agent for plaintiff, and *544by his direction, until the price was paid, was in accordance with the contract. It was the possession, and not the title, which remained in plaintiff. Such possession was a security for the price. What more could the plaintiff have done in performance of his contract ? What additional tender could he have made of the hops ? In what respect was the plaintiff in fault, or for what failure on Ms part should he be denied the pay for his hops ? The contract was valid and binding upon the defendants. Why may they refuse to pay in accordance with the terms of their contract, after the plaintiff has fully performed ?

I concur with brother Learned in affirming the judgment, with costs.

(dissenting) :

There was no delivery of the hops at the time of the contract of sale. The contrary of this is not pretended, as it could not be maintained on the evidence submitted. The question then is, whether the delivery afterwards, at the railroad station, was such a delivery as vested the title to the property in the defendants. Very manifestly it was not. The plaintiff left the hops with the station agent as his own property, under written directions to deliver them on payment of the pui’chase-price. The direction to the station agent was to deliver “m/y bale of hops upon the receipt of the money atfortyfoe cents per pound” A delivery of the property to the defendants by the station agent without payment would have been a wrongful delivery of the plaintiff’s property ; until payment the title remained in the latter. It is perfectly manifest that the plaintiff did not intend to part with his title until payment was made of the purchase-price. He expressly required payment as a condition of delivery. Hntil compliance with this condition the title remained in the vendor. These conclusions are fully sustained by the decision in Conway v. Bush (4 Barb., 564). See also Fleeman v. McKean(25 Barb., 474), and Smith v. Lynes (5 N. Y., 41). There are many other cases to the same effect. (See Knight v. Mann, 118 Mass., 146; 120 id., 220, and eases cited ; and Safford v. McDonough, id., 290.)

The title to the hops, therefore, remained in the plaintiff at the time they were stolen from the railroad station, and it follows that *545the loss occasioned, by the larceny must fall on the party then having the legal title. (Kein v. Tupper, 52 N. Y., 550.) We are cited to several cases holding that, under a contract of sale of goods, where nothing remains to be done by the seller before making delivery, the right of property passes, although the price be not paid nor the thing delivered. (Olyphant v. Baker, 5 Denio, 379; Hyde v. Lathrop, 3 Keyes, 597; Hayden v. Demets, 53 N. Y., 426, 431.) But these decisions have no application to a case like this in hand, where payment was to accompany delivery. The judgment should be reversed and new trial granted, costs to abide the event, and reference discharged.

Judgment affirmed, with costs.