Chapin v. Fitzgerald

Appellant is in error in contending that the title to the goods had passed to Howard. The truckman was the agent of the vendor, not of the vendee. To pass the title, required not only delivery, but acceptance. Ho •claim is made that the goods had been accepted, and the case of Kein v. Tupper, 52 N. Y. 550, is authority to show that, even as to the first load of goods, the delivery was not complete. Ho occasion existed for Howard Bros, to “repudiate the delivery, ” or to do anything about it. Hot until the whole lot of goods was delivered to them, and opportunity allowed them to examine whether their order had been complied with, were Howard Bros, under obligation to accept or refuse the goods. That time never arrived. The evidence on which defendant was held liable for the trespass was sufficient for that purpose. The attachment was at the instance of the defendant, and for his benefit. He had prompt notice of what was done, and never dissented. The attachment and sale were ratified by him when he accepted the proceeds. If it be said that he was mistaken in the ownership, so was the sheriff. Ho indemnity bond is necessary to fix the liability of the plaintiff in the execution where he is present in person at the wrongful levy, which proceeds by his procurement. The evidence offered of judgments recovered against Cross was properly excluded. It did not appear that the property in suit had ever-belonged to Cross, but the contrary. The judgment should be affirmed, with costs.