Wheeler v. Lawson

• Decision Date: 05 October 1886
• Parties: WHEELER and another v. LAWSON.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 40

8 N.E. 360

WHEELER and another

v.LAWSON.

Court of Appeals of New York.

October 5, 1886.

The plaintiffs sue in trespass to recover damages for the unlawful and forcible taking by the defendant from their possession, and the conversion to his use, of certain horses and other personal property belonging to them. The complaint contains the usual allegations in such cases, and the defendant, after a general denial, sets up, by answer, that at the time mentioned in the complaint he was sheriff of Erie county, and in that character did the things complained of, by virtue of certain executions against one Shoemaker; that the property taken by him was not the property of the plaintiffs, but belonged either to the execution debtor or to one Allen, as his assignee, and who, the defendant alleges, resides in this state, and is a necessary party to the action; he also alleges a lien for $91 in favor of Allen, as such assignee, for the care, etc., of the property, and its payment by defendant. Some other matters are set out, but they are not material upon this appeal.

The record does not contain the evidence, but, from the report of the referee, it appears that the following facts were found by him:

On the first day of January, 1880, said Shoemaker resided in the city of Buffalo, and was engaged in the manufacture and sale of ale and porter. At the same time one Marvin Cline, of the same city, was engaged in the manufacture and sale of malt, and on that day Shoemaker was indebted to Cline in a large sum of money, upon certain promissory notes made by Shoemaker, and payable to the order of Cline; and he then, in consideration of said indebtedness, executed to Cline an instrument in writing, wherein he transferred and sold to him certain ‘goods, chattels, wares, and merchandise;’ and, among other things, the property described in the complaint, upon the condition, as expressed in said instrument, ‘that, if the party of the first part shall pay, take up, and discharge the said promissory notes at the maturity thereof, and if he shall pay any other promissory note or notes, which shall be indorsed by the said Marvin Cline, at his request and for his accommodation, * * * then, and in that event, this instrument shall become null and void, and of no effect whatever.’

That at the time of its execution and delivery it was agreed by said Cline, and understood by said Shoemaker, that it would not be filed until Cline should notify him, and that Shoemaker should continue to carry on his business the same as before, which he did, until the assignment hereinafter mentioned, and Cline did not take possession of the property, but the same continued in the possession of Shoemaker, up to about the twentieth day of July, 1880, when he executed a general assignment to one Allen, for the benefit of his creditors, except so far as said property was changed by Shoemaker in the conduct of his business; that, within a day or two after the delivery of this instrument to Cline, he delivered it to the plaintiffs, ‘to secure papers of said Shoemaker which then was or might be in existence,’ and on the eleventh of June thereafter executed to them, in writing, an absolute assignment of all his interest in said bill of sale, and it remained in their possession; that said instrument and assignment were filed on the twenty-fifth day of June, 1880, in the office of the clerk of Erie county; that, after said instrument was delivered to Cline, he furnished moneys and supplied malt to said Shoemaker, to be used by said Shoemaker in his business, and said Shoemaker gave to said Cline therefor certain promissory notes. Each of the notes was made by said Shoemaker payable to the order of said Cline. Cline indorsed and delivered all of them to the plaintiffs herein, in the usual course of business, and for a valuable consideration, and they now hold the same.

That on the twentieth day of July, 1880, the plaintiffs went to the place of business of Shoemaker, in the city of Buffalo, and there found said Shoemaker and Allen, his assignee, and demanded and took possession of the property described in the complaint herein, under and by virtue of the said instrument, with the permission of said Shoemaker and said Allen, and without objection on the part of either of them, and the plaintiffs thereupon caused said property to be advertised for sale under and by virtue of said instrument; that after the making and delivery of said instrument, and before the written assignment thereof was made by said Cline to said plaintiffs, the said Shoemaker made or indorsed to the Third National Bank of Buffalo certain promissory notes; that the same were not paid when they became due, and judgments were duly recovered thereon by said bank against said...