Tuthill v. . Skidmore , 124 N.Y. 148 ( 1891 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] It will be assumed that the title to the property passed to the vendee, which is the most favorable view which can be taken of the case for the defendants.

Permitting commercial paper to be dishonored by one engaged in commerce, and his property to be attached in an action in which judgment is subsequently recovered by default is evidence, and if unexplained is proof of insolvency. (Brown v. Montgomery,20 N.Y. 287; Booth v. Powers, 56 id. 22, 32; Abb. Tr. Ev. 616.)

Neither party asserting at the trial that Lawton's solvency was a question of fact for the jury, the court was justified in holding as a question of law that he was insolvent.

When the price of goods sold on credit is due and unpaid, and the vendee becomes insolvent before obtaining possession of them, the vendor's right to the property is often called a lien, but it is greater than a lien. In the absence of an express power the lienor usually cannot transfer the title to the property on which the lien exists by a sale of it to one having notice of the extent of his right, but he must proceed by foreclosure. When a vendor rightfully stops goods in transitu, or retains them before transitus has begun, he can, by a sale made on notice to the vendee, vest a purchaser with a good title. (Dustan v. McAndrew, 44 N.Y. 72.) His right is very nearly that of a pledgee, with power to sell at private sale in case of default. (Bloxam v. Sanders, 4 B. C. 941; Bloxam v.Morley, 4 id. 951; Milgate v. Kebble, 3 M. G. 100;Audenreid v. Randall, 3 Cliff. 99, 106; Black. Sal. [2d ed.] 445, 454, 459; Benj. Sal. [Corbin's ed.] § 1280; Jones' Liens, § 802.) The vendee having become insolvent and refused payment of the notes given for the purchase-price of the property which remained in the vendor's possession, his right to retain it as security for the price was revived as against the vendee and his attaching creditor. (Arnold v. Delano, 4 Cush. 33; Haskell v. Rice, 11 Gray, 240; Milliken v. Warren, 57 Maine, 46;Clark v. Draper, 19 N.H. 419; Bloxam v. Sanders, 4 B. C. 941; Bloxam v. Morley, Id. 951; Hamburger v. Rodman, 9 Daly, 93; Benj. Sal. [Bennett's ed.] § 825; 2 id. [Corbin's ed.] § 1227; Story Sal. § 285; Black. Sal. 454.)

The plaintiffs allege in their complaint that they own the property, and also that they "had a special property therein, to wit: A lien for unpaid purchase-money," both of which allegation the defendants specifically denied. It is now insisted, as it was at the trial by the defendants, that the allegation in respect to the special property is not a compliance with section 1720 of the Code of Civil Procedure, which provides that when "the right of action or defense rests upon a right of possession by virtue of a special property, in which case the pleading must set forth the facts upon which the special property depends so as to show that at the time when the action was commenced or the chattel replevied, as the case may be, the party pleading or the third person who is entitled to the possession of the chattel." The defendants not having moved to make the complaint more definite and certain, and it affirmatively appearing that they were neither harmed nor misled by the omission to set forth all of the facts out of which the special property arose, the judgment will not be reversed for this defect in the complaint.

When the trial began it was moved in behalf of the defendants that the plaintiffs be compelled to elect whether they would seek to recover on the ground that they owned the property or on the ground that they had a lien thereon for unpaid purchase-money. To this request the court replied "I will hear the evidence first before I compel him to do that." To this remark the defendants excepted. At the close of the plaintiffs' case, the defendants offering no evidence, both parties asked the court to direct a verdict.

The object of requiring plaintiffs to elect between inconsistent causes of action is to simplify the issues of fact so that they may be intelligibly and fairly tried, but it is plain in this case, that the defendants were not misled nor harmed by the refusal of the court to compel an election. The plaintiffs' allegation that they owned the property and their allegation that they had a lien thereon for unpaid purchase-money are inconsistent. (Hudson v. Swan, 83 N.Y. 552.) But when, as in the case at bar, the inconsistency plainly appears on the face of the complaint, the defendants should, before answering, move that the plaintiffs be compelled to elect. (Cassidy v. Daly, 11 W. Dig. 222.) If in such a case the defendant lies by until the trial and then moves, the court may in its discretion wait until part or all of the evidence is taken before deciding the motion (Southworth v. Bennett, 58 N.Y. 659), and its denial is so far discretionary (Kerr v. Hayes, 35 N.Y. 331, 336;People v. Tweed, 63 id. 194), that it will not be reviewed when it appears that the defendant was not harmed.

It is also urged on the authority of Hudson v. Swan (supra), and the cases therein cited, that the plaintiffs by alleging in their complaint and asserting at the trial absolute ownership of the property, and also a special interest in or lien upon it, waived their special interest or lien, if any they had, and cannot recover without establishing ownership. In the case cited the facts alleged by the plaintiff to establish ownership were inconsistent with those upon which he relied to establish a lien, which is not the fact in the case at bar. As has been shown, the plaintiffs' interest was more than that of mere lienors, and there being no dispute about the facts, the inconsistency relating wholly to the legal conclusions to be drawn from the agreed facts, the case cited is not controlling.

The judgment should be affirmed, with costs.

All concur, except BROWN, J., not sitting.

Judgment affirmed.