Tuthill v. Skidmore

If it be conceded that the title to the goods passed to the purchaser which m.ay admit of doubt, the fact remains that as the goods continued in the vendor’s possession until the notes given therefor became dishonored, his lien for the unpaid purchase money revived, (Story, Sales, § 287;) and as the defendants, under their attachment, can only succeed to such rights as their debtor-possessed, it follows that the sheriff could not lawfully take the goods from these plaintiffs in disregard of their vendor’s lien. This would be true irrespective of the insolvency of'the vendee. But the evidence of the vendee’s insolvency is ample. His allowing his notes to be dishonored is evidence of insolvency which would enable the vendor to retake his goods, even though the term of credit had not expired. The court was entirely right in refusing to require the plaintiffs to elect upon which claim they would proceed. Where the nature of a plaintiff’s claim is in doubt, he should be permitted to prove the facts, and the court should allow such recovery as it may judge to be his right. It is a travesty of justice to require a party to elect, and when his election is made, to say, in effect, Had you elected otherwise you might have recovered; now you must fail. If a court were a mere debating society, such a course might be proper; but if it is an instrument of justice, such methods can only serve to defeat its object. The difficulties in obtaining justice are sufficiently great that no need exists to increase and aggravate them by traps and technicalities. If the court finds difficulty in deciding upon what ground a party’s recovery should go, so much the greater must be the difficulty of counsel, who cannot so accurately know the views of the tribunal upon which the decision must depend. Judgment affirmed, with costs.

Barnard, P, J., and Dykman, J., concurred.