Fuller v. Claflin

(dissenting.) The phrase, “sold to arrive,” in mercantile contracts, does not import an executed sale. The sale is conditional, and, incase the events take place upon which its execution depends, the right of the vendee, in case of non-delivery of the goods, is to recover damages therefor. He cannot maintain replevin. The title is in the vendor until the sale is completed, in th.e same manner as other sales. Anderson v. Read, 106 N. Y. 333, 13 N. E. Rep. 292. It follows, therefore, that the agreement of Brennan & Co. did not transfer to Claflin a present title to the goods. That remained in the vendors, and, upon the appointment of the receiver, vested in him as the representative of the court, as did the other assets of the estate. After that time the title of the goods could only be transferred by the receiver, or by order of the court. It also appears that on August 30th, when the contract was made, there were no goods of Brennan &Co. on the schooner M. C. Decker. There was therefore, at that time, nothing which answered the description of the contract. Before the goods were placed on board, they had vested in the receiver. They were not at any time before the receivership set apart or specified, or in any way appropriated, to the fulfillment of the contract,—all of which was necessary to be done before the title could pass. Hot till those steps were completed could any one tell which of the goods were to go to the vendee. The goods vested in the receiver before these things were done, and whatever was done by the agents of Brennan & Co. after that time had no validity. It follows that the goods were the property of the receiver, who must have judgment upon the agreed statement of facts for $3,724.65, and interest from October 16, 1888, and his disbursements in the action.

It is fully settled that one member of a partnership may sell, hypothecate, or otherwise dispose of the property, securities, or effects of the firm. Thomas K. Foster, one of the members of the firm of C. Brennan & Co., consequently had the power to make the sale to H. B. Claflin & Co. The question in this case is reduced to the consideration of the fact whether or not the instrument dated August 31, 1888, executed by Foster, was sufficient and adequate by its terms to transfer to the vendees the title to the property therein referred to. Said agreement reads as follows: “Hew York, August 31, 1888. For value received, we hereby sell and transfer to H. B. Claflin & Co. 150,000 cocoa-nuts and ten tons of ivory-nuts, to arrive in the schooner Mary C. Decker, from San Blas, U. S. C. C. Brennan & CÓ.” Subsequently to the execution of the above contract, and in order to carry out the terms thereof, the supercargo of the schooner was directed by telegraph to have the consignment made out to H. B. Claflin & Co. The consideration for the foregoing contract is ample and sufficient. C. Brennan & Co. were at the date thereof justly indebted to the defendants H. B. Claflin & Co., and suits had been instituted for the recovery of said indebtedness. It has been held in this state that any act which is for the benefit of one of the parties to a contract, and operates to the injury of the other party or parties, is a good and effectual consideration to uphold a sale. Hart v. Young, 1 Lans. 417; Britenstool v. Michaels, 56 N. Y. 607. It has been further held that the giving of a bill of sale of certain specific articles is a good consideration for the postponement of the enforcement of a claim. Audas v. Nelson, 64 Barb. 362. There remains but one more question to be considered in reference to this case, viz., in reference to the delivery of the subject-matter of the bill of sale. By a long line of decisions in this state, it is established that the delivery, which is one of the essential prerequisites to a valid sale, must be such as the article sought to be sold is by its nature susceptible of. Hayden v. Demets, 53 N. Y. 426; Wilkes v. Ferris, 5 Johns. 335. In the case under consideration, although the goods were not on the schooner at the date of the bill of sale, still they were *93in the hands of agents or on their way thither, and the consignment of them to H.B. Claflin & Co., in accordance with the telegraphic instructions to that effect, operated to make as perfect a delivery as the circumstances of the case in question allowed. Even admitting that the sale was not complete in all 'essentials, still H. B. Claflin & Co., having given a valuable consideration for the instrument in question, have priority of right over the receiver appointed subsequently, under the principle of law set forth in the phrase, qui prior est in tempore potior est in jure. Judgment should be given for the defendant, with disbursements only according to the term of the submission.

Dykman, J., concurs.