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and 140 New York State Reporter agreements of this kind were frequently made by saloon keepers with the agents of the defendant in the city of Buffalo. The defendant company disclaims any authority in its agents to enter into any such agreement on its behalf, or that it knew of any such agreement, or that it ever received any additional premium on account thereof. The defendant White in his affidavit further states that the agreement mentioned was indorsed upon his application, which was sent to and retained by the company; but the officers of the latter deny that it contained any such indorsement. It appears from the papers of the surety company used in opposition to the motion to vacate the order in supplementary proceedings that the violations of the liquor tax law complained of in the action on the bond were that the defendant White kept and maintained a disorderly house and a place of “public resort for lewd women and prostitutes." The complaint in that action is not before us. If the charge and proof were that the servants or agents of the saloon keeper were guilty of these violations, and without his assent or knowledge, the contract which he claims the surety company entered into with him might have been designed to protect him against the unauthorized acts of such servants or employés. If, on the other hand, it was intended to shield him from liability for any infraction of the liquor tax law, however flagrant, it may well be doubted whether such agreement would not be in contravention of public policy. Materne et al. v. Horwitz et al., 101 N. Y. 469, 5 N. E. 331; Foley et al. v. Speir et al., 100 N. Y. 552, 3 N. E. 477; Dean v. Clark, 80 Hun, 80, 30 N. Y. Supp. 45.

We are not passing upon these questions, and refer to them simply for the purpose of fortifying and explaining our conclusion that they ought not to be determined upon a motion to vacate the order in supplementary proceedings. The controlling facts are in controversy, the construction of the alleged agreement is not free from doubt on the facts contained in the record before us, and its legality is doubtful. With all these complications, both of law and fact, the parties should be left to their remedy by action. We think the authorities, if any are needed, tend to support this position. Robens v. Sweet, 48 Hun, 436, 1 N. Y. Supp. 839; Rich v. Salinger, 11 Abb. Prac. 344; Smith v. Paul, 20 How. Prac. 97; Dresser v. Shufeldt, 7 How. Prac. 85.

If a judgment has been paid, the court may upon motion set aside an order of this kind, so that the judgment debtor will not be unjustly harassed, and, if for any reason it appears without dispute that the order was improvidently granted, a like remedy may be available to the judgment debtor, and upon the motion a reference may be ordered to aid the court in deciding disputes which may arise. In the present case the questions raised are unusual, important, and perplexing, and should be disposed of in an action.

The order appealed from should be reversed, with $10 costs and disbursements of this appeal, and the motion to vacate the order requiring the respondent to appear and be examined before a referee denied, with $10 costs, and the matter remitted to the county judge of Erie county to designate the time and place for the judgment debtor to appear before the referee. So ordered. All concur.

SCHWAB et al. v. QATMAN et al.

(Supreme Court, Trial Term, New York County.) 1. SALES-PASSING TITLE-DELIVERY-CUSTOM,

A contract for the sale of cotton duck specified the quantity, price, and terms, and provided that 5,000 yards should be delivered promptly, and the balance about April 15, 1903, according to shipping directions to be received from the buyer. The contract was duly numbered, and the goods paid for as invoices were received from the selling agents, from whom the goods were purchased. The goods were packed in bales numhered from 1 to 42. All but the first shipment were held by the selling agents under a custom that the agents should hold such goods until called for by the buyers. Before the goods were called for the agents stored them and obtained loans thereon, with the exception of bale No. 42, which remained in the agents' possession marked as "held” for the buyers. The selling agents became insolvent, and were unable to pay the loans made on the goods by the warehousemen. Held, that the specific goods had been set apart for the buyers, and that title was in them as against the warehousemen.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, 88 529


The rule that a bona fide purchaser of goods for a valuable consideration in ordinary course of trade, without notice of any adverse claim or circumstances which would charge an ordinarily prudent man with notice thereof, will be protected against the original owner, applies only where such owner by his own direct voluntary act has conferred on the person from whom the bona fide purchaser derives title the apparent right of ownership of the property or right of disposal as agent.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, 88 659


Where plaintiffs, having purchased and paid for a lot of cotton cloth to be used in their cotton converting business, left a quantity thereof in the possession of the selling agents, from whom it was purchased, in accordance with the custom of the business, the agents' possession was not such as to deprive plaintiffs of the right to recover the cloth from the agents' pledgee.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, &$ 692


Factors' Act, Laws 1830, p. 203, c. 179, $ 3, provides that every factor or other agent, not having documentary evidence of title, but who has possession of goods for the purpose of sale or as security for advances to be made or obtained on the goods, shall be deemed the true owner, so far as to validate a contract made by the agent with any other person for the sale of the merchandise for any money advanced on a negotiable instrument or other written obligation given by such person on faith thereof. Held, that where goods belonging to plaintiffs were left in the possession of the selling agents, according to a custom of the business, until called for, neither for sale nor as security for advances to be made or obtained thereon, a pledge of the goods by such agents was not enforceable, under such act, against plaintiffs.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Factors, $ 83.} 6. WAREHOUSEMEN-STORAGE OF Goods-ADVANCES-LIEN.

Laws 1902, p. 1776, C. 608, § 2, declares that a warehouseman shal) have a lien on goods stored with him for his charges for storage, cartage, labor, freight, insurance, and “other advances" thereon, including weigbing and cooperage in relation to the goods or other goods belonging to

and 140 New York State Reporter the same owner, and that he may detain the goods until the lien is paid. Held, that the term "advances," as so used, did not include loans made on security of the goods, but was limited to expenditures in handling and protecting the goods.

[Ed. Note.- For other definitions, see Words and Phrases, vol. 1, pp.

214-218; vol. 8, pp. 7566–7567.) 6. SAME-STORAGE CHARGES ON OTHER GOODS.

Laws 1902, p. 1776, C. 608, § 2, gives a warehouseman a lien on goods stored for storage charges, etc., on such goods or other goods "belonging to the same owner.” Held, that the words “other goods belonging to the same owner" should be restricted to actual, as distinguished from apparent, ownership due to possession, so that where selling agents, in possession of goods belonging to plaintiffs, stored the goods with other goods belonging to such agents, the warehouseman was not entitled to a lien on plaintiffs' goods for the storage charges on the goods belonging to the agents.

Replevin by Samuel M. Schwab, Jr., and another, doing business as S. M. Schwab, Jr., & Co., against Frederic A. Oatman and another, doing business as the Mercantile Warehouse Company. Judgment for plaintiffs.

Frank, Neuman & Newgass (Frank F. Neuman, of counsel), for plaintiffs.

John P. Elder (Joseph Fettretch, of counsel), for defendants.

GIEGERICH, J. The plaintiffs, claiming title to 41 bales of cotton duck cloth, have brought an action in replevin against the defendants, who, as warehousemen, were in possession of the same. The plaintiff's purchased the goods in question, together with others, from a corporation known as the "James Freeman Brown Company," which acted as selling agents for various cotton mills. The contract took the form of a letter or memorandum, dated March 28, 1903, signed by the company just named, and reading as follows:

"From James Freeman Brown Co., Mill Selling Agents. Original. Our No. 1.251. New York, March 28, 1903. Sold to Messrs. S. M. Schwab, Jr., & CO., 46 White St., City. Code or brand: "Carson.' Description: 3715 in. 2.45 yard duck. Put-up of goods: Cuts of 120 yards as far as practicable. Quantity : 50,000 yards. Price: 612 cents per yard. Terms: Cash 10 days less 3 p. C., OI 2 p. c. 10 days, 60 extra, freight paid to finishing works. Tailings and seronds clause void. In addition buyer to take tailings, not to exceed 10 per cent., if contract is not renewed; buyer to take seconds, not to exceed per cent., at

cents per yard less than contract price. To be delivered: 5,000 yards promptly; balance about April 15, 1903. To be shipped to (via): First 5,000 yds. to Aspinook Co., Jewett City, Conn. Please send directions for balance. We record your order as above same to be mutually binding. Please carefully note the following clauses: If the production of the mill accepting this contract be curtailed by strikes, or lockouts to counteract strikes, or by any unavoidable accident, the deliveries shall be proportioned to the production. If in anywise incorrectly stated, please notify us at once. otherwise we shall consider this order confirmed by you. A duplicate of this contract goes by this mail to the mill.

"James Freeman Brown Company.

"James M. Curran, P." The plaintiffs conducted what is known as a “cotton converting business,” wirich consists in taking the goods in their original gray condition and printing them in colors. It was shown by the evidence that

it was a custom in the business for the mill or the agent to hold the goods purchased until called for by the purchasers and then to ship them to the print works designated. The invoices, however, are forwarded promptly as the goods become ready for delivery at the mills, and the contract price becomes payable upon the specified date after the receipt of the invoice by the purchaser according to the period of credit allowed. The custom on the part of the mills or agents to hold goods subject to the instructions of the buyer for forwarding was shown by the evidence to be an elastic one as to time, having no fixed limit of duration. The first shipment by the James Freeman Brown Company under the contract was one of 5,810 yards, sent, as therein provided, to the Aspinook Company, Jewett City, Conn., on or about April 15, 1903. The invoice for this shipment was received by the plaintiffs on or about April 20, 1903, and payment was made by them about June 27, 1903. Subsequently, the plaintiffs received five additional invoices from the James Freeman Brown Company on successive dates from June 13 to July 18, 1903, such invoices covering 42 bales, Nos. 1 to 42, inclusive, which invoices were paid by the plaintiffs within the period of credit fixed in the contract. In the meantime the goods in question had been forwarded to the James Freeman Brown Company, whose place of business, as well as the place of business of the plaintiffs and defendants, is in New York City, and, with the exception of bale 42, had been placed by that company in the warehouse of the defendants, who issued warehouse receipts therefor and made loans thereon. Subsequently the James Freeman Brown Company became insolvent, and when the plaintiffs sought the goods which they had purchased and paid for they found them in the possession of the defendants, who refused to deliver them up, except upon payment of the amount of their advances on the goods in question, and their storage charges on the goods in question and also on other goods which had been stored with them by the said company. The question is whether title to the goods vested in the plaintiffs in such manner as to entitle them to possession from the defendants without complying with the latter's demands for reimbursement. The absolute good faith of both the plaintiffs and the defendants in the entire transaction is conceded. Neither is there any dispute as to any of the facts, except as to the existence of the custom of mills and selling agents to hold goods subject to the shipping instructions of purchasers; and on this point I find in favor of the plaintiffs, as above stated, namely, that such a custom exists and that the duration of the period during which goods will be so held is an elastic one and has no fixed limit.

The first question to be considered is whether the facts are such as to show an appropriation of specific goods to the plaintiffs, notwithstanding the fact that possession still remained in the selling company, in such manner as to transfer title to the plaintiffs. On this point we have the following facts: That, the number “1,251" appears on the written contract or memorandum above referred to; the words being “Our No. 1,251.” This number appears on the various invoices forwarded to the plaintiffs from time to time by the selling agents, sometimes in the form of the expression “Your Order No. 1,251,” but more generally in the form "Our Contract No. 1,251." The invoices further

and 140 New York State Reporter bear the words "Detailed Invoice of Merchandise Bought of James Freeman Brown Co., Mills Selling Agents,” and contain a list of the numbers of the respective bales and the varying quantity in yards which each contained, together with a statement of the kind of goods. Each invoice also bore an invoice number, to which reference will be made later. The facts above referred to, without reference to anything else or any discussion, indicate sufficiently, I think, that it was the intention to segregate and appropriate to the plaintiffs as their property the bales thus specified by the bale number and the amount in yards and the brand word or designation of the goods. Another significant circumstance in this connection, if anything else was necessary, is found in the fact that bale No. 42 never came into the possession of the defendants, but was found in the possession of the James Freeman Brown Company and bore a tag containing, among other things, the following words written by the shipping clerk of the James Freeman Brown Company, to wit: "Held for S. M. Schwab." There is still other evidence indicating with equal strength that the goods were deemed to belong to the plaintiffs. Furthermore, most of the invoices bore the statement that the bill was payable to Ladenburg, Thalman & Co., and a direction that checks should be made payable to the order of that company and mailed direct, and on the strength of such invoices and the credit and liability of the plaintiffs as purchasers of the goods therein specified the James Freeman Brown Company obtained advances from Ladenburg, Thalman & Co. on the several invoices. There is still further evidence contained in the books and other records of the James Freeman Brown Company with respect to these various invoices (including the retention and repetition of the invoice number and consequent tracing and identification of each invoice thereby), all going to corroborate the evidence above referred to and to strengthen the proof that these specific goods had been set aside and treated by the seller as goods of the purchaser, the plaintiffs. Without stopping to state the evidence further, it is enough to say that the case seems to be clearly within the rules laid down in the authorities. Bailey v. Hudson R. R., 49 N. Y. 70; Kimberly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334; Ingalls v. Herrick, 108 Mass. 351, 11 Am. Rep. 360; Barrett v. Goddard, 3 Mason, 107, 2 Fed. Cas. 911; Benjamin on Sales (7th Am. Ed.) p. 351, and cases there cited.

The next question is whether, having been once vested with title to the bales in question, the plaintiffs did anything which could be deemed as divesting themselves of such ownership or as estopping them from asserting it. The rule as laid down in Saltus v. Everett, 20 Wend. 267, 32 Am. Dec. 541, where the question is elaborately discussed and the authorities examined, is that an honest purchaser, who buys for a valuable consideration in the course of trade, without notice of any adverse claim or any circumstances which might lead a prudent man to suspect the existence of such adverse claim, will be protected in his title against the original owner in those cases, and in those cases only, where such owner has by his own direct, voluntary act conferred upon the person from whom the bona fide vendee derives title the apparent right of property as owner, or of disposal as an agent. See, also, Williams v. Merle, 11 Wend. 80, 25 Am. Dec. 601; Barnard v. Campbell

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