Winne v. McDonald (39 N.Y. 233, 1868)

Bacon, J.

This case has been twice before the Superior Court, upon appeal from judgments rendered at Special Term. On the first trial, the jury found for the plaintiffs, upon a charge, to which exceptions were taken by the defendants, and, on appeal, the verdict was set aside, and a new trial granted. Upon this occasion, an opinion was given, by the General Term, which is reported under the name of Denbrow v. McDonald, in 5 Bosw. 130. On examining the statement of facts in that case, and comparing them with the evidence as it appears upon the ease as now presented, there is no appreciable difference between them, with perhaps one exception. It seems to have been observed by the court in its opinion, although the point is not very clearly stated, that the measurer’s return, in respect to the cargo of the boat Ural, was received by the defendants before they made the advance of $5,000 to Perry, upon the wheat in question. It now appears, that this return was not, in point of fact, delivered to the defendants, until the morning of the 24th, the day after the advance was made. It is shown that it was sent to the office of Perry, on the 23d, at what particular hour does not appear, except that Sheldon states it was in the morning, nor does it appear that Perry had actually seen it before he made the application to the defendants for the advance. This is deemed a very significant circumstance by the counsel for the plaintiffs, but in viiwpf the questions upon which this case ultimately turns, I do not deem it of any special materiality.

In the opinion rendered, after the first trial by the court, it is held, that, upon the uncontroverted facts of the contract for the purchase of the wheat,.the delivery of the cargo of .the Ural on board the Compromise; the sending the measurer’s return to the purchaser; the request of the latter that the vendor would wait for payment until Saturday, un- ' objected to, assuming that there was no fraud in obtaining the delivery, the defendants in this case, having, in good faith, made an advance on the security of the wheat, and on the faith of Perry being the owner, would obtain a valid title thereto as against the original vendors to the extent of their advance, although the buyer should fail after such advance and be unable to fulfill his contract to pay the purchase price, that, the delivery being all the delivery the contract required, or the parties contemplated, it was subject to no condition 'inless it be an implied one, that payment should be made vhen all the wheat was delivered.

It was further held, that, where an advance was made ,o the buyer, upon the understanding at the time, of both parties, that it was made upon the security of the wheat, and the person advancing should thenceforth have the control of it, and a bill of lading furnished, and such bill is immediately thereafter issued and delivered,—the party thus advancing has, from that time, the right of possession and control, as against the seller.

In the light of this opinion, and guided by its general principles, the cause was brought to trial the second time. The proof was substantially the same, and the same questions presented themselves, with one exception. The point that the purchase of the wheat, by Perry, was fraudulent, does not, on the first trial, seem to have been made; at any rate, the charge of the judge on that trial was that there was' not sufficient evidence in the case to raise the question that such purchase wa% fraudulent, and this passed without exception or comment. On the last trial, considerable evidence was given bearing on that subject, and the question was distinctly presented to the jury by the presiding judge.

There were three aspects which the case presented, and which it became the duty of the court to bring to the consideration of the jury i First, whether Perry was guilty of fraud in the purchase of the wheat, and, therefore, the possession as between him and the plaintiffs was mala fide, and the property was susceptible of reclamation if it had been retained in his hands. Second, if obtained without fraud, and the delivery had been made with a waiver of payment, and with intent to give Perry control of it, whether the transaction could be impeached as between those parties, and, if so, whether the title of the defendants was not entirely unassailable. Third, assuming that Perry’s purchasé was fraudulent, or that the delivery was conditional, yet, if the defendants advanced their money upon the wheat in good faith, believing it to be Perry’s property, and it was delivered to them as security, they were not entitled to hold it.

The charge is given, at length, in the case, and is elaborated with care and discrimination, and, in my judgment, it covers every aspect the case presents, and every proposition of law the evidence is calculated to raise. On the subject of Perry’s acquisition of the property, the jury were told, that, if the purchase and delivery were procured by fraud, 'then Perry would not be entitled to retain the wheat, as against the plaintiffs. This question was distinctly submitted to the jury, upon the evidence, and that evidence was briefly recapitulated. It stood almost wholly upon the testimony of Perry himself, who was subjected to a lengthy and searching cross-examination. It is made a matter of complaint, that it was so presented that but one result could be anticipated. But it surely is not the subject of exception, and should not be of complaint, if a witness commends himself to the court, by the apparent candor and fairness of his testimony, that a comment upon his evidence, to that effect, should be indulged from the bench. There is no rule of practice or propriety, that forbids a judge from stating the impressions which testimony, either as to its subject-matter or the manner of its delivery, makes upon his mind, leaving it, however, to the jury, as it was-in this case, to come to their own conclusions. There can be little room to question, that the-jury did reach the conclusion that Perry was guilty of no fraud, in making the purchase, although, if they had come to an opposite result on this question, it would not have established the right of the plaintiffs to recover, since it is a well established rule, that a party, who has acquired possession of property by means which, as between him and his immediate vendor, would render his title invalid, may, nevertherless, impart a good title to a bona fide purchaser from him. (Mowrey v. Walch, 8 Cow. 238; Root v. French, 13 Wend. 570.)

If, now, we lay the question of fraud, as I think we well may, out of the case, assuming that the jury found there was no fraud in the purchase, it is important to consider what the transaction was between the plaintiffs and Perry, touching tire delivery of this wheat, and how far his transfer to the defendants was valid and their title can be upheld. It is insisted, on the part of the plaintiffs, that the contract for the purchase of the wheat was an entire contract for the delivery of both loads, and under it the plaintiffs could not require payment for either load until both were delivered. This is undoubtedly true, and so the court instructed the jury; but it is equally true, that, although entire in form, it was divisible at the election of the plaintiffs, the purchaser also assenting thereto. The demand of payment by the plaintiffs, of Perry, for the cargo of the Ural, and the sending of the measurer’s return, assumed a completed delivery of that cargo, which was full and entire, and not in any respect dependent upon the delivery of the cargo of the other boat. To this demand Perry acceded, and requested only credit for the payment until Saturday, which was unobjected to on the part of the plaintiffs. This view was clearly presented to the jury by the presiding judge. He told them the plaintiffs could deliver a part, and ask for payment, and if they did so, and, when the request for delay of payment until Saturday was made by Perry, they acquiesced, and allowed him to retain the measurer’s return, with a view, and consenting to give him a credit as asked, irrespective of the question whether the other cargo was then delivered or not, then it was an absolute and unqualified delivery to Perry, which vested in him the title, so that he could pledge this wheat as security to the defendants. In another.part of the charge, when referring to this proposition, he told the jury, that, if, upon the other hand, the plaintiffs only meant to follow the instructions of Perry, placing the wheat on the ' ship designated as the place of delivery, but without any intent to give him control over it, and intending and expecting to require payment of the price, according to the terms of the bill of sale, which were payment cash,” then, although they sent the measurer’s return to the office, 'they had a right, as against Perry, to reclaim the grain —if he did not pay according to the terms of the bargain — when the whole of the grain was delivered.

No proposition more broad than this could have been asked by the plaintiffs. It conceded all they had the right ’to demand, as competent or possible for the jury to find from the evidence, and the two propositions together covered the whole case. It cannot be denied, that there was evidence sufficient to justify the submission to the jury of the question whether the plaintiffs consented to give Perry a credit for the boat load of wheat then delivered until Saturday; and that Perry then agreed to pay for it, irrespective of the delivery of the other boat load. The delivery of the cargo of the Ural was entire and complete, insomuch, that I think it cannot be doubted, that, if the vessel and cargo had been destroyed by fire intermediate the delivery and the day to which the credit was extended, the loss would have been Perry’s and not the plaintiffs’. The whole proposition was, in my judgment, entirely sound in law, and gave the case,