Tompkins v. Fonda Glove Lining Co.

• Decision Date: 09 April 1907
• Citation: 188 N.Y. 261,80 N.E. 933
• Parties: TOMPKINS et al. v. FONDA GLOVE LINING CO.
• Court: New York Court of Appeals Court of Appeals

188 N.Y. 261

80 N.E. 933

TOMPKINS et al.

v.FONDA GLOVE LINING CO.

Court of Appeals of New York.

April 9, 1907.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Albert Tompkins and another against the Fonda Glove Lining Company. From a judgment of the Appellate Division of the Third Department (93 N. Y. Supp. 1149,105 App. Div. 637), affirming a judgment for plaintiffs, defendant appeals. Reversed, and new trial ordered.

Andrew J. Nellis, for appellant.

William W. Morrill, for respondents.

CULLEN, C. J.

The action is for the conversion of a quantity of machinery, the subject of a conditional sale made by the plaintiffs to the Cayadutta Knitting Company in 1896. The condition of the sale was that the title to the property sold by the plaintiffs should remain in them until the payment by the vendee of the purchase price, for which certain drafts were given: These drafts were renewed from time to time, but never paid. In 1901 the knitting company transferred the machinery, together with other personal property and real estate, to the firm of Littauer Bros., who were large creditors of the company. In 1902 the property was sold by Littauer Bros. to the defendant, who, in consideration thereof, issued a portion of its capital stock. The agreement between the plaintiffs and the knitting company was oral, and, of necessity, was not filed as required by the statute; but the trial court found that both Littauer Bros. and the defendant had knowledge of the plaintiffs' title and that neither was a purchaser in good faith. It therefore awarded the plaintiffs the value of the goods converted. The learned counsel for the appellant, in an elaborate argument, contends that in effect the transaction between the original parties was not a conditional sale, but a chattel mortgage, and therefore void. We think this claim is not well founded, and that there are only two objections to the recovery which require our notice.

The evidence given by the plaintiffs to show that the defendant had knowledge of their claim were declarations of Titus Sheard, a stockholder and director of the defendant company, who negotiated the purchase of the property in suit from Littauer Bros. Sheard had died before the time of the trial. This evidence was admitted against the objection and exception of the appellant, who contends that such admission was error. We think the law is settled otherwise. The fact that Sheard was a director and officer of the defendant did not render his admissions or declarations admissible as against the defendant. First Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 278, 19 Am. Rep. 181. They were admissible, however, on another ground of which his connection with the defendant forms no factor, except that it was through that connection that the declarations made were against the interest of the declarant. Mr. Greenleaf states the rule (Evidence, § 147): ‘A third exception to the rule, rejecting hearsay evidence, is allowed in the case of declarations and entries made by persons since deceased, and against the interest of the persons making them, at the time they were made. We have already seen that declarations of third persons, admitted in evidence, are of two classes, one of which consists of written entries, made in the course of official duty or of professional employment. * * * But declarations of the other class, of which we are now to speak, are secondary evidence, and are received only in consequence of the death of the person making them. This class embraces, not only entries in books, but all other declarations or statements of facts, whether verbal or...