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A little investigation on the part of the Broadway Company or any subsequent purchaser would have revealed the fact that the certificate of registration issued by the secretary of state, attached to the deposition offered in evidence, was in the name of the plaintiff. The receipts for the payment of storage of the car must also be taken into account. They were also in the name of the plaintiff.

These considerations, I believe, dispose of the doctrine of "equitable estoppel," invoked by the defendant's attorney. The conclusions seem to me to be irresistible that Carona was guilty of larceny, that the plaintiff still has a proprietary right to the automobile (which is not now in the state of New York), and that there be judgment for the plaintiff, on the merits, for the value of the car, viz. $500. *

O'CONNOR'S ADM'X v. CLARK.

(Supreme Court of Pennsylvania, 1895. 170 Pa. 318. 32 Atl. 1029;
29 L. R. A. 607.)

Replevin by John O'Connor's administratrix against John Clark. Judgment for plaintiff, and defendant appeals.

STERRETT, C. J. If there is nothing more in this case than the facts recited by the learned trial judge in the excerpt from his charge quoted in the first specification of error, the instructions therein given to the jury to find for the plaintiff if they believed the testimony would be substantially correct. The only facts of which this instruction is predicated are (1) that the wagon in question was the property of John O'Connor, the original plaintiff; and (2) that Tracy, without his permission, took it, and sold it, or attempted to sell it, to the defendant as his own. But these are not the only facts of which there was evidence before the jury. On defendant's behalf, it is contended that the testimony tended to prove, and the jury, if they had been permitted, would have been warranted in finding, that defendant purchased the property in question from Tracy in the honest belief that he was in fact the owner thereof; that the name and occupation of Tracy—viz. "George Tracy, Piano Mover"-were on the wagon when he offered it for sale, and that fact was referred to as indicating his ownership of the property, etc.; that, Tracy being a stranger, defendant was specially careful to inquire and inform himself that the person who was in possession of and offering to sell the wagon was the George Tracy whose name and occupation were painted thereon; that Tracy's name and occupation were put upon the wagon with the knowledge of O'Connor, the original plaintiff, and himself, and by direction of the former, for the purpose of creating the impression and inducing the public to believe that the property belonged to Tracy, and was being used by him in his business as a piano mover, in which he had theretofore been engaged. Without attempting to summarize the testimony relied on by the defendant, it is sufficient to say that it tends to prove substanially the state of facts above outlined, and especially that the original plaintiff, for his own gain and benefit, was a party to the arrangement whereby Tracy's name was put on the wagon for the purpose of misleading the public into the belief that the property was his, and that defendant, acting with due caution and in good faith, was thus misled as to the ownership of the property, and purchased the same from Tracy. While the soundness of the general rule of law that a vendee of per

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sonal property takes only such title or interest as his vendor has and is authorized to transfer cannot for a moment be doubted, it is not without its recognized exceptions. One of these is where the owner has so acted with reference to his property as to invest another with such evidence of ownership, or apparent authority to deal with and dispose of it, as is calculated to mislead, and does mislead, a goodfaith purchaser for value. In such cases the principle of estoppel applies, and declares that the apparent title or authority, for the existence of which the actual owner was responsible, shall be regarded as the real title or authority, at least so far as persons acting on the apparent title or authority, and parting with value, are concerned. Strictly speaking, this is merely a special application of the broad equitable rule that, where one of two innocent persons must suffer loss by reason of the fraud or deceit of another, the loss should fall upon him by whose act or omission the wrongdoer has been enabled to commit the fraud.

Assuming, in this case, that a jury, under the evidence, should find -as we think they would be warranted in doing-that such marks of ownership were placed on the property by direction of O'Connor, the real owner, as were not only calculated to deceive, but actually intended to deceive, the public, and that by reason thereof, and without any fraud or negligence on his part, the defendant was misled into the belief that Tracy was the real owner, and he accordingly bought and paid him for the property, can there be any doubt, as between the real owner and the innocent purchaser, that the loss should fall upon the former, by whose act Tracy was enabled to thus fraudulently sell and receive the price of the property? We think not. In Barnard v. Campbell, 55 N. Y. 456, 14 Am. Rep. 289; Id., 58 N. Y. 73, 17 Am. Rep. 208-a well-considered case, involving substantially the same principle-it was held that to create an estoppel by which an owner is prevented from asserting title to and is deprived of his property by the act of a third person, without his assent, two things must concur: “(1) The owner must have clothed the person assuming to dispose of the property with the apparent title to or authority to dispose of it. (2) The person alleging the estoppel must have acted and parted with value upon the faith of such apparent ownership or authority, so that he will be the loser if the appearances to which he trusted are not real."

Judgment reversed, and a venire facias de novo awarded.

Section 23 of the Sales Act above quoted is qualified by the following subsections.

Section 23, Subsec. (2). Nothing in this act, however, shall affect (a) the provisions of any factors' acts, recording acts, or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof. (b) The validity of any contract to sell or sale under any special common law or statutory power of sale, or under the order of a court of competent jurisdiction.

SECTION 3.-SALE BY ONE HAVING A VOIDABLE

TITLE

Sales Act, Section 24. Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods provided he buys them in good faith, for value and without notice of the seller's defect of title.

In the preceding cases the innocent purchaser was protected not because his vendor had any title or authority to sell the goods, but solely because it was unjust to permit the owner to deny that the seller had authority to sell or to deny that the seller was the

owner.

Under section 24 we are dealing with a case where the vendor did in law and fact have the title but the circumstances under which he obtained and held that title were such that his vendor had a legal right to get that title back. In the law such a title is called a voidable title. So the question is: When will a person have a voidable title?

In re ALLEN.

(United States District Court, E. D. Arkansas, W. D. 1910. 183 Fed. 172) In the matter of John Q. Allen, bankrupt. On review of order of referee sustaining the petition of the Heim Brewery Company to reclaim property.

The Heim Brewery Company filed its intervention for a number of casks and cases containing empty beer bottles in the possession of the trustee of the estate of the bankrupt, claiming to be the owner thereof and entitled to the immediate possession. The trustee denied that the intervener was the owner of the property, but insists that the property claimed belongs to the bankrupt's estate.

The cause was submitted upon an agreed statement of facts, which shows that under that contract the bankrupt bought large quantities of beer from the intervener; that the beer was delivered in cases containing bottles and in casks containing bottles bearing the individual brand and registered copyright of the intervener; that a part of said casks, cases, and bottles have been returned; but that the trustee is now in possession of a number claimed by the intervener. Upon a hearing before the referee, he found in favor of the intervener. The cause now comes before the court on petition for review by the trustee.

TRIEBER, District Judge. On behalf of the intervener it is claimed that, until the articles claimed are paid for by the vendee, it is merely a bailment, and he is entitled to a return of them, or, at most, that it was an option to purchase. On the other hand, it is claimed on the part of the trustee that it was a contract of "sale and return.”

A "bailment" is properly defined as being a delivery of goods in trust upon a contract, express or implied, that the trust shall be duly executed and the goods restored by the bailee as soon as the purpose of the bailment shall be served.

On the other hand, a "contract of sale" is when there is an agreed price, a vendor, a vendee, an agreement of the former to sell for the agreed price, and an agreement of the latter to buy and pay the agreed price. An "option to purchase" is merely an agreement whereby the vendee may, upon compliance with certain terms and conditions, become the owner of the property; the vendor giving him that option.

The leading case upon which the intervener relies is Wescott v.. Thompson, 18 N. Y. 363. In that case the contract was for the sale of beer and provided for the sale of the beer to the vendee at a certain price. The beer was to be shipped in barrels and the barrels to be returned to the plaintiff when emptied of the beer, and if not returned the vendee was to pay for every barrel not returned the sum of $2, and thereupon became the owner thereof. On the other hand, in the case at bar, the contract provides that the vendee is to be charged and pay for the cases and bottles, but in case he wishes to return any of the cases and empty bottles he is to be allowed a rebate on his bill of $1.50 for each case of empty bottles returned to the intervener.

Is this an option to purchase or a contract of sale and return? The distinction between these two forms of agreement has been aptly pointed out in Hunt v. Wyman, 100 Mass. 198, as follows: "An option to purchase if he liked is essentially different from an option to return a purchase if he should not like. In one case the title would not pass until the option is determined; on the other hand, the property passes at once, subject to the right to rescind and return."

Applying this rule to the contract between the intervener and the bankrupt, it clearly appears that it was not an option to purchase, but a contract of sale and return, while, on the other hand, the contract in Wescott v. Thompson was merely an option to purchase. In the latter case it was optionary with the vendee to keep the empty barrels and pay the sum of $2 for each barrel kept by him or to return them. In the case at bar the bankrupt was charged and promised to pay for the cases and bottles unless he desired to return the same, and if he did he was to be paid or given credit on his account therefor the sum of $1.50 for each case and bottles therein.

Great stress is laid upon the fact that under the contract the bankrupt was to pay the net price only on the bottled beer, still the charge was made against him, and until he returned them he was liable to the intervener who had a cause of action against him. In Heryford v. Davis, 102 U. S. 235, 26 L. Ed. 160, the contract between the parties spoke of the cars sold as being leased until paid for, but notes were executed by the vendee for the full purchase money. The cars, before they were paid for, having been seized under execution, the vendor claimed them as his property, but the court held that calling it a lease did not make it so, nor was it a conditional sale, but merely an attempt to retain a lien for the purchase money, and, the same not having been recorded as required by the laws of the State of Missouri, it was void as against creditors.

In Re Rahilly v. Wilson, 3 Dill. 420, Fed. Cas. No. 11,532, grain was stored in a warehouse with the understanding that it should be sold by the warehouseman, and when the depositor would surrender the receipt therefor the warehouseman had the right to return an equal amount of grain of equal quality or pay the then market price of the grain. Upon these facts it was held by Judge Dillon that it was a sale and not a bailment. The distinction between bailments and

sales is clearly shown by the opinion of that eminent jurist, who carefully reviews the authorities on that subject.

In Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093, the court held that "a transaction is a 'sale,' as distinguished from a 'bailment,' when there is no obligation to return the specified article." In this case there was no obligation on the part of the bankrupt to return the property claimed by the intervener; but, if he saw proper, he had the right to do so and receive a credit for the amount specified in the agreement. If the property had been destroyed by fire or by any other cause, even if without any fault or negligence on the part of the bankrupt, the loss or destruction would still have fallen on him. This is the rule applicable to contracts of sale and return.

As this was a contract of sale and return and not a mere option to purchase, nor a bailment in any sense, the title passed to the bankrupt, and the trustee is entitled to the possession of the property. The finding of the referee will be set aside, and judgment entered dismissing the intervention, with costs.

PHELPS et al. v. McQUADE.

(Court of Appeals of New York, 1917. 220 N. Y. 232, 115 N. E. 440, L. R. A. 1918B, 973.)

Action by William R. Phelps and another against Dennis Charles McQuade. From a judgment of the Appellate Division, directing judgment for defendant, plaintiffs appeal.

[The statement of facts is taken from the opinion in the same case in the Appellate Division of the Supreme Court. 158 App. Div. 528, 143 N. Y. Supp. 822.]

CLARKE, J. The plaintiffs were jewelers. On February 15, 1911, one Walter C. Gwynne falsely represented himself to the plaintiffs to be Baldwin J. Gwynne, a resident of the Lincoln Hotel in Columbus, Ohio, with a satisfactory rating in the reports of the Dun and Bradstreet Mercantile Agencies, and later on the same day, the manager of Jules S. Bache & Co., bankers, identified the said Walter C. Gwynne to plaintiffs' manager as being Baldwin J. Gwynne of Columbus, Ohio. That was brought about in this way: Gwynne had become acquainted with one of Bache's customers in an uptown hotel and had told this customer that he had had a falling out with his sweetheart, that he had some jewelry he wished to dispose of, and asked this gentleman if he would be willing to purchase any of these goods. He said he could not take them back to the parties that he had purchased them from. After some conversation, the gentleman decided to purchase one of these pieces and asked him what the name was. He told him Baldwin J. Gwynne, and so this customer of Bache's wrote out a check for the amount agreed upon. After this the supposed Baldwin J. Gwynne went down to Bache's office to cash the check and was told that as he was not known he would have to identify himself. He replied that would be very easy; he would call the maker of the check. This was satisfactory to Bache & Co. The maker did call and told the bankers that this was the person the money was intended for.

The plaintiffs, relying upon the representations of Gwynne and said identification, sold him a ring, a gold mesh purse, and a diamond

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