Smith v. Clews

• Decision Date: 23 April 1889
• Citation: 21 N.E. 160,114 N.Y. 190
• Parties: SMITH et al. v. CLEWS et al.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 190

21 N.E. 160

SMITH et al.

v.CLEWS et al.¹

Court of Appeals of New York,

Second Division.

April 23, 1889.

Appeal from supreme court, general term, First department.

Action by Alfred H. Smith and another against Henry Clews and others. Judgment was given for defendants, and plaintiffs appeal.

FOLLETT, C. J., dissenting.

Esek Cowen, for appellants.

Albert A. Abbott, for respondents.

BROWN, J.

This action was brought to recover the possession of two diamonds, with their settings, constituting what is called in the evidence a pair of ‘diamond ear-knobs.’ The plaintiffs are dealers in diamonds, having their place of business at No. 14 John street, in New York city. On the 11th day of April, 1879, Borden W. Plumb, who was a diamond broker, introduced to Mr. Alfred H. Smith, one of the plaintiffs, one Elijah Miers, telling Smith that Miers thought that, if he saw a pair of ear-knobs that suited him, he could sell them to Mr. Clews, and that he

FN1 Reversing 47 Hun, 638, mem.

had brought him to the plaintiffs' store that he might see the assortment. Miers selected a pair that he said he thought would suit Mr. Clews, and it was then arranged that Smith should send them to him on the following day by Mr. Plumb. Miers had on two previous occasions sold stones to Mr. Clews. On the first occasion he sold a pair for $300, which, proving unsatisfactory, were returned, and another pair substituted in their place, of the value of $450. On the day following the conversation at the store the diamonds were delivered to Plumb, who delivered them to Miers, taking from him, at the time of the delivery, a receipt, of which the following is a copy: ‘NEW YORK, April 12th, 1879. Received from Alfred H. Smith & Co., by their representative, B. W. Plumb, a pair of single-stone diamond ear-knobs, 10 1/8 carats, of the value of fourteen hundred dollars, ‘on approval,’ to show to my costomers; said knobs to be returned to said A. H. Smith & Co. on demand. [Signed] E. MIERS.' Miers soon after sold the diamonds to Clews for $1,100, taking back in part payment the second pair that he had sold him for $450, and receiving credit on Clews' books for $650, of which $550 was afterwards paid out by Clews for Miers' account, but for what purpose does not clearly appear from the evidence. Plaintiffs demanded the diamonds from Miers and from Clews, and this action was brought to recover their possession. The case has been twice tried. On the first trial the plaintiffs had judgment, which was reversed in this court. 105 N. Y. 286, 11 N. E. Rep. 632. On the second trial the complaint was dismissed, and, the general term having affirmed the judgment entered on such dismissal, plaintiffs appealed to this court. After proving substantially the facts I have stated, the plaintiffs called as a witness Chester Billings, who, having testified that he had been an importer and dealer in diamonds in the city of New York for 36 years, was asked whether there was a pecullar meaning given in the diamond trade to the words ‘on approval.’ This question was excluded, on defendants' objection, and plaintiffs excepted. Plaintiffs then offered to prove by Billings and other witnesses that the words ‘on approval,’ mentioned in the receipt, had a recognized meaning in the diamond trade, and were understood not to confer a power to sell, but authority merely to show diamonds to a customer and report to the owner, and that this meaning was well known to plaintiffs and to Plumb and Miers. This evidence was excluded on defendants' objection, to which plaintiffs excepted.

Evidence is always admissible to explain the meaning of terms used in any particular trade, when their meaning is material to construe the contract, and the rule extends to forms of expression as well as to single words. Evidence of usage is also admissible to apply a written contract to the subject-matter of the action; to explain expressions used in a particular sense by particular persons as to particular subjects; to give effect to language in a contract as it was understood by those who made it. Walls v. Bailey, 49 N. Y. 470;Silberman v. Clark, 96 N. Y. 524;Boorman v. Jenkins, 12 Wend. 573;Dana v. Fiedler, 12 N. Y. 46;Bissel v. Campbell, 54 N. Y. 357;Hinton v. Locke, 5 Hill, 437; Newhall v. Appleton, ante, 105, (decided at this term of the court, opinion by PARKER, J.) The case shows that this evidence was excluded by the trial court because the plaintiffs did not bring it home to Mr. Clews. Obviously, Clews' knowledge of the custom had nothing to do with the question. No man can be divested of his property without his own consent, and, consequently, even an honest purchaser under a defective title cannot hold against the true owner. That ‘no one can transfer to another a better title than he has himself is a maxim,’ says Chancellor Kent, ‘alike of the common and civil law, and a sale ex vi termini imports nothing more than that the bona fide purchaser succeeds to the rights of the vendor.’ 2 Kent, Comm. 324, and cases cited. The rightful owner may be estopped by his own acts from asserting his title. If he has invested another with the usual evidence of title, or an apparent authority to dispose of it, he will not be allowed to make claim against an innocent purchaser dealing on the faith of such apparent ownership. McNeil v. Bank, 46 N. Y. 325. But mere possession has never been held to confer a power to sell, and an unauthorized sale, although for a valuable consideration, and to one having no notice that another is the true owner, vests no higher title in the vendee than was possessed by his vendor. Covill v. Hill, 4 Denio, 323....