Salinger v. Simmons. to make the defendants liable, at least notice should have been given that they were returned, and were to be taken back by the defendants in their steamboat for the plaintiff. Huntley, the agent, was not aware of their being returned, and no directions were given as to what they were left for, or what was to be done with the property. Huntley was the agent for three different steamboats, and unless he was advised that the property was intended for the defendants, I do not understand how they can be held liable for his acts. If it be said that he should have notified the owner, the answer is, that the evidence does not show that he had notice of the delivery for the defendants, and hence they are not liable. Huntley being the proprietor of the house where the goods were placed and in store, became thereby the agent or bailee of the owner (Fisk v. Newton, 1 Denio, 45). In establishing the liability of a common carrier, it must not be overlooked that there must be an acceptance of the goods, and that the responsibility does not commence until the delivery is complete. It is not enough that the property is delivered upon the premises, unless the delivery is accompanied by notice to the proper person (Grosvenor v. New York Central R. R. Co., 39 N. Y., 34, and authorities there cited). The defendants were exonerated from liability after the goods were delivered to the consignee, and no steps were taken to bring them within the rule laid down in the case last cited, after they were thus discharged. In no aspect in which the case can be considered can the defendants be held liable; and the judge upon the trial, in my opinion, committed no error in his rulings, and properly directed a nonsuit. A new trial must be denied with costs. Ford v. Ransom. FORD against RANSOM. New York Superior Court; Special Term, May, 1870 CHATTEL MORTGAGE. INJUNCTION. An injunction lies at suit of a mortgagor of chattels with reservation of possession for a certain time, to prevent the mortgagee from taking possession before the time limited. So held, where the mortgage was constituted by a bill of sale, and assignment, made by the one party, and a separate stipulation to leave him in possession, given by the other. Motion for an injunction. This action was brought by John H. Ford against Charles B. Ransom. The facts are stated in the opinion. John E. Devlin, for the plaintiff. James M. Smith, for the defendant. MCCUNN, J.-On or about the 24th day of December, 1868, Mr. John H. Ford, the plaintiff in this action, was owing the defendant, Mr. Charles B. Ransom, the sum of eight thousand one hundred and nineteen dollars, and twenty-four cents, to secure which he sells to Mr. Ransom the stock of goods and fixtures in certain premises, and executes and delivers a bill of sale for said goods and fixtures-Mr. Ford retaining possession and trafficking with said goods. Along with such bill of sale he executed an assignment of an unexpired lease which said Ford held of said premises. At the same time the defendant delivers back to the plaintiff a writ. ten stipulation, securing to him (Ford) the possession of the goods and fixtures until the following first of Ford v. Ransom. January. This arrangement was made for the purpose of securing the defendant payment of eight thousand one hundred and nineteen dollars and twenty-four cents, due him from the plaintiff. And hence, in the stipulation a clause was inserted allowing the plaintiff until the first of January to pay the eight thousand one hundred and nineteen dollars and twenty-four cents, and on payment of that sum revesting in the plaintiff the property in the goods and fixtures. It must be borne in mind that Mr. F rd still retained possession. Before the first of January the parties quarrel, and the defendant having attempted to take possession of the goods and fixtures, and the lease, the plaintiff brings this suit to quiet him in his possession until the lapse of the period during which, by the terms of the stipulation, he was to remain in possession. Clearly, the plaintiff is entitled to the r lief he solicits. The bill of sale and the stipulation being executed at the same time, between the same parties, in relation to the same subject-matter, and in contemplation of the same object, constitute but a single contract; and thus it appears that by his own agreement the defendant has renounced the right of possession under his bill of sale, and has secured possession of the chattels to the plaintiff until the expiration of the stipulated period. I am at a loss to conceive by what right the defendant can claim possession in defiance to his own solemn stipulation conceding that by the bill of sale the property in the goods passed to the defendant, yet he was not to have possession until the first of January. The transaction is in effect a chattel mortgage. Indeed, in terms it fulfills all the conditions of a mortgage, there being a transfer by way of security and a contingency on which the transfer should become void: viz: payment of the debt. Meanwhile the vendee (mortgagee) assents that the vendor (mortgagor) shall remain in possession until default. Upon what principle, until that default, can the vendee claim possession of the goods? It is familiar N.S.-VOL.VIII.—27 Levy v. Brush. learning, that if the mortgagor be disturbed in his possession before condition broken, he may bring trover or trespass against the mortgagee. Thus the rules of law, no less than his own express agreement, operate to prevent the defendant usurping possession before he has the right of possession. The mere statement of his claim exhibits its absurdity. It can scarcely be thought necessary to cite authorities in support of the principle above propounded; but perhaps the defendant's counsel will be more fully convinced of the invalidity of his pretension when he consults Johnson v. Crofoot, 53 Barb., 574; Hall v. Sampsom, 35 N. Y., 277; Smith &. Beattie, 31 N. Y., 542. LEVY against BRUSH. New York, Superior Court; General Term, October, 1869. ACTION ON PAROL CONTRACT. - STATUTE OF FRAUDS. An action lies by one of two joint purchasers of land against the other in whose name the purchase was made, to compel a conveyance of the share of the former, notwithstanding their agreement was verbal. A contract between two buyers of land, for the purchase of the land on joint account, by which each is to contribute to the price, and they are to take title as tenants in common or joint tenants, is not a contract for the sale of land within the statute of frauds; and is valid though not in writing.* Appeal from a judgment. * Compare Tomlinson v. Miller, 7 Ante, N. S., 364. As to signing by both parties, see 40 N. Y., 363, 496. Levy v. Brush. This action was brought by Lewis S. Levy against Sylvester Brush, to compel the conveyance by the defendant to the plaintiff of the undivided half part of certain lots of land in this city. The contract which it was sought to enforce was shown in the following testimony of the plaintiff: "On the 10th of March last I attended the sale of real estate at the Exchange salesrooms, in New York cityMr. Bleecker being the auctioneer-and there I met Mr. Sylvester Brush, the defendant; we stood beside each other; and when the first lot, on the corner of Sixthavenue and Fifty-ninth-street, was knocked down, I pointed to the lot on the corner of Fifty-ninth-street and Seventh-avenue, and said, here is a nice piece of property; I should like it; he replied, let us buy it on joint account; I said, all right, go ahead; when the lot was put up, he commenced bidding, and I, as the bidding went on, gave my assent to his continuing his bids on the property, sometimes by a nod, sometimes by direct words; the property was struck down to him at twentynine thousand dollars; I then said, we must endeavor to buy these lots at the side of it; he asked me about how much cash I wanted to invest; I told him about the sum I wanted to lay out in cash; we figured up the amount already purchased, and found we could buy, if they went cheap enough, some of the rear lots; but these were sold at a higher price than we chose to give for them. Therefore, the only lots we bought were the three lots on the corner of Seventh-avenue and Fiftyninth-street. During this sale we talked about the deeds being made out in both our names. I wanted my brother Henry's name also to be joined thereto, as I said to Brush, that all purchases of real estate were on the joint account of myself and brother. He objected to that, and said my brother had too large a family of children, and that the deed had better be made out in his, Brush's, and my name only. To which I assented. I left him at the sale before its conclusion, |