Ullman, Einstein & Co. v. Biddle Bros.

• Citation: 44 S.E. 280,53 W.Va. 415
• Parties: ULLMAN, EINSTEIN & CO. v. BIDDLE BROS.
• Decision Date: 28 April 1903
• Court: Supreme Court of West Virginia

44 S.E. 280

53 W.Va. 415

ULLMAN, EINSTEIN & CO. v. BIDDLE BROS.

Supreme Court of Appeals of West Virginia.

April 28, 1903

Submitted January 17, 1903.

Syllabus by the Court.

1. In general, no one can transfer a better title to a chattel than he himself has--even to a bona fide purchaser.

2. Mere possession, without more, of a chattel by a bailee for storage, will not be ground for inference of authority to sell, so that a bona fide purchaser can buy from him good title against the owner.

Error to Circuit Court, Wood County; L. N. Tavenner, Judge.

Action by Ullman, Einstein & Co. against Biddle Bros. Judgment for plaintiffs, and defendants bring error. Affirmed.

W. N Miller and Caldwell & Watson, for plaintiffs in error.

Van Winkle & Ambler, for defendants in error.

BRANNON J.

Ullman Einstein & Co. brought detinue in the circuit court of Wood county against Biddle Bros. to recover 10 barrels of whisky which resulted in a verdict of a jury finding for the plaintiffs 8 of the 10 barrels, on which verdict the court gave judgment for the plaintiffs, and the defendants brought a writ of error.

The side of the case of the plaintiffs is that their agent Guggenheim, sold to Wilson, a liquor merchant, the whisky, and shipped it from Cleveland to Wilson, at Parkersburg; that, when advised of the shipment, Wilson declined to accept the whisky, and wrote the plaintiffs a letter so declining; that on receipt of the letter said agent went to see Wilson, and tried to get him to buy the whisky, but Wilson declined, and then an arrangement was made between them that Wilson should take the whisky into his store, and keep for the plaintiffs, on storage, until they could sell it, and the whisky was taken to Wilson's store. Wilson says that Guggenheim tried to sell him the whisky, but he refused to buy, but that, notwithstanding such refusal, the whisky was shipped to him, and that he wrote the plaintiffs that he would not take it; that then Guggenheim came to Parkersburg, and Wilson agreed to take the whisky, at the invoice, and thus purchased it. The whisky was shipped 23d April, and Guggenheim saw Wilson and made the storage agreement 1st May, and again in June, as Guggenheim claims. On 11th July, Wilson sold his entire stock, including this whisky, to J. W. Depue, and on same day Depue sold a half interest to the Biddles, and a few days later the other half, and shortly after Depue bought back of the Biddles about $2,000 worth of the liquors. Not a dollar was ever paid the plaintiffs. Wilson was at all these dates heavily in debt, beyond solvency--far beyond.

On the trial the court, on the motion of the plaintiffs, gave the following instruction: "If the jury believe from the evidence that the plaintiffs were the owners of ten barrels of whisky described in the declaration, and that the plaintiffs sent said whisky to Parkersburg, in or about the spring of 1898, to be delivered to J. L. Wilson, or to some other person in his behalf; and if the jury further believe from the evidence that J. L Wilson, after being notified that the whisky had been shipped, refused to buy or to accept said whisky as a purchase, but that the said Wilson did afterwards take the same into his possession as the property of the plaintiffs, with the understanding that he would hold the same for the plaintiffs, and subject to their order--then, so long as Wilson held such whisky under that arrangement, the whisky remained the property of the plaintiffs, and Wilson had no title thereto, and could not pass title to the whisky, or make lawful sale of the property. And if the jury believe from the evidence that Wilson did take such whisky into his possession, agreeing to hold it for the plaintiffs as their property, as above set forth, then, before the jury can find that the whisky subsequently became the property of Wilson, the burden of proof is on the defendant to show by fair preponderance of the testimony that Wilson lawfully acquired title to the property after agreeing to hold it for the plaintiffs."

We see no error in that instruction. Plainly, if there was no sale passing title out of the plaintiffs to the whisky, and Wilson got it into his hands on storage as a bailee, while such storage existed, Wilson had not a shadow of title, and could pass none to Depue, and Depue could pass none to Biddle Bros. The last clause is specified as objectionable because it put the burden of proof on the defendants. It says that if Wilson had the whisky on storage--if that status once existed--then the defense must show that the storage arrangement was ended by a sale because the defendants so asserted and claimed. They claimed under title conferred by sale, and must prove it. 1 Greenl. § 74. It is said that this instruction ignores the law respecting the rights of Perdue as an innocent purchaser without notice, as affected by the character of the possession of the goods by Wilson, and the indicia of title which he held therefor, and propounds an illegal proposition as to the burden of proof resting on the Biddles, as innocent purchasers, and takes no notice of the fault of the plaintiffs in allowing Wilson to remain in possession of the invoice and permit Wilson to mingle the liquors with others sold. Practically, if this broad proposition be held, there can be no bailment that does not lose the property to the bailor, and give the bailee power to confer title on a purchaser, though that bailee has not an iota of title. It would violate that basic principle in the law of sales found in Mechem on Sales, § 154: "It is a fundamental doctrine of the common law, from which all discussion of the question must proceed, that, in general, no one can transfer a better title to a chattel than he himself has. 'Nemo dat quod non habet' is usually the inflexible maxim. That some or all of the parties acted in good faith or parted with value is usually entirely immaterial. However innocent the motives, or however valuable the consideration, if the party who assumed to convey had no right or title to transfer, no title can pass to the other." The very authority cited to support the contention of the Biddles says that "simply intrusting the possession of a chattel to another as depositary, pledgee,...