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4 Daly 136

Heard v. Brewer

New York Court of Common Pleas

Decided June 15, 1871

New York Court of Common Pleas · decided 1871-06-15

<p>The general rule is that the right of lien, which is in the nature of a pledge, attaches only to property which has come into the actual possession of the bailee, factor or other person who claims the benefit of it. But a merely constructive possession may, in some cases, give a lien, although the actual possession is in another.</p> <p>Thus, where the plaintiff, a commission merchant, accepted a draft drawn on him upon advices from the drawer that he would make a shipment of goods to him to cover the amount, and the drawer shipped goods, with the clear intention on his part of appropriating them to the plaintiff for his security, Held, that the property in the goods passed to the plaintiff upon their shipment, and from that time the plaintiff was in constructive possession, and on their arrival was entitled to the actual possession as against an attaching creditor of the shipper.</p> <p>In the absence of a bill of lading, the intention to vest the property in the goods in the consignee upon the shipment, so as to give him a constructive possession, subject only to the equitable right of stoppage in transitu, may be inferred from other documents, such as receipts or orders, or by the correspondence which has taken place between the parties.</p> <p>A factor having a lien upon goods for the amount of his advances, can, in an action against a creditor of his principal, who has taken the goods under attachment, recover only the value of his special property in the goods. He is not entitled to a judgment for the whole value of the goods.</p>

Relies on Dana v. Munson

Decided 1871-06-15

J. F. Daly, J.

¶1—I concur in the views of the Chief Justice, set forth in his learned opinion, so far as the right of the plaintiffs to recover under their lien for advances is concerned, but I regard the recovery of $82 87 as excessive. The balance due the plaintiffs, as testified to by them, was $64 19, and as this was the extent of their special property in the goods, it should be the extent of their recovery. In Fitztvugh v. Wiman (9 N. Y. 565), it was held, that in an action by the forwarder making advances and entitled to his freight, brought against another who takes the goods wrongfully from the plaintiff, but actually delivers them to the rightful consignee or owner before the suit was brought, the plaintiffs cannot recover the actual value of the goods, and the Value to be assessed should be the value of their special property in the goods. It was said by Judge Johnson, that if the goods had not been so delivered by the defendant to the rightful owner or consignee, they would have been entitled to.a judgment for the whole value. This, of course, is founded in reason: the forwarder had to deliver the goods or answer for his default to the extent of their- whole value; if a wrongdoer take them from him, he is entitled to recover the whole value himself, in order to answer to his consignee j but if the wrongdoer himself deliver them to the consignee, the forwarder has only the right to the demand he would have against the latter.

¶2In this case, the goods were seized by the marshal under an attachment against the principal, who was a non-resident, and was indebted to the parties obtaining the attachment upon a balance due on a' draft. The value of the goods was $82 87; the difference between that value and the plaintiffs’ special property in the goods, under their lien, $64 19 ; which difference amounted to $18 68, certainly belonged to the plaintiffs’ principal in Norfolk, and was subject to attachment for his debts. By the attachment it was applied to them.

¶3The judgment should be modified, so as to make it a judgment for $64 19. And no costs should be allowed to either party on this appeal.

¶4The other judges concurred.

¶5Judgment modified accordingly.

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