Cronan v. Fox

• Decision Date: 23 May 1888
• Citation: 14 A. 119,50 N.J.L. 417
• Parties: CRONAN, Sheriff, v. FOX
• Court: New Jersey Supreme Court

14 A. 119

50 N.J.L. 417

CRONAN, Sheriff,

v. FOX

Court of Errors and Appeals of New Jersey.

May 23, 1888.

(Syllabus by the Court.)

Error to supreme court.

One Blumenthal being the owner of a lot of cattle, and being indebted to Moses Fox in the sum of $4,000, to secure that indebtedness sold him the cattle. The cattle were at the time in the loading pen at the depot in Baltimore, ready to be loaded on the cars for shipment to New York city. The arrangement between the parties was that Blumenthal should sell the cattle to Fox; that Fox should allow the cattle to go on to market and be sold; that Fox should take the proceeds, and, if more was realized than the amount of his debt, the surplus should be paid to Blumenthal; if less, then Blumenthal should pay the balance of the debt. In pursuance of this arrangement, Blumenthal gave Fox a receipt in these words: "Received, Balt., August 7, 1882, of Moses Fox, four thousand dollars, in full for 97 cattle. $4,000. JULIUS BLUMENTHAL. "The receipt was made and delivered at Baltimore, Md. Fox resided at Baltimore, and Blumenthal in Philadelphia. Immediately after the receipt was given to Fox, he sent Willair, his book-keeper, to the freight office, to have the cattle billed for shipment in his name. When Willair reached the freight office, the cattle had already been billed in Blumenthal's name, consigned to one Westheimer, a commission agent, at Jersey City. Blumenthal having gone to his home at Philadelphia, the shipment in his name could not be revoked. The receipt was delivered to Fox about 2 o'clock on Monday, the 7th of August, and the cattle left Baltimore on the cars about 4 o'clock the same day. Fox and Willair took the next train for Philadelphia, and about 3 o'clock on Tuesday morning saw Blumenthal. and obtained from him the following order: "PHILADELPHIA, August 8, 1882. Mr. W. Crow: Will you please turn the three car-loads over to A. J. Willair. JULIUS BLUMENTHAL." Immediately after the order was signed, Willair took the train for Jersey City, and reached there on Tuesday, August 8th, about half past 6 in the morning. He presented the order to Westheimer, the consignee, who said it was all right, and he would turn the cattle over to him. The cattle had not then arrived. They reached Jersey City about half past 10 that morning, and Willair then presented the order to Gratz, who had come on with the cattle in the place of Crow. Gratz recognized the order, and gave up the cattle to Willair, who took charge of them, and had them watered and fed. On Tuesday, August 8th, Martin Fuller & Co., creditors of Blumenthal, sued out of the circuit court of the county of Hudson a writ of attachment against him as a non-resident debtor. The writ was delivered to Cronan, the defendant, the sheriff of Hudson county, who executed it by seizing the cattle the same evening at the cattle-yard in Jersey City. Fox sued Cronan in trespass for taking the property under the writ. The suit was tried before the court (Justice KNAPP) without a jury, and resulted in a finding for the plaintiff. The defendant took exceptions to the ruling of the trial judge, and sued out a writ of error.

William Brinkerhoff, for plaintiff in error. Flavel McGee, for defendant in error.

DEPUE, J., (after stating the facts as above.) The controversy is with respect to the title to personal property. The sale by Blumenthal to Fox, being by way of security for a debt, was treated by the trial judge as in the nature of a chattel mortgage. It was so regarded by this court when the case was here on a former occasion. 47 N. J. Law, 493, 2 Atl. Rep. 444, and 4 Atl. Rep. 314. The defendant justified under the...