Mills and others v. Hallock and another, 2 Edw. Ch. 652

The Vice-Chancellor: In the case of Haggerty v. Palmer, 6 J. C. R. 437, it was assumed that the delivery of the goods was conditional, from the usage of trade which was said to exist in relation to auction sales in the city of New York where goods were sold for approved endorsed notes and the notes were not given ; and it was held that the auctioneer could reclaim the goods or their proceeds in the hands of a voluntary assignee; and in Keeler v. Field, 1 Paige’s C.

R. 312, the delivery was considered to be conditional by the terms of the contract itself until endorsed notes were given and not from any particular usage of trade—the sale there not being one at auction. The circumstances of the last case furnished also a ground of fraud upon which the court could very properly interfere and restore possession of the goods. But, in the present case,' there is no ground for imputing fraud to the purchaser or any undue means in obtaining a delivery to him.

Nor is there any thing in the terms of sale from which it can be inferred that the auctioneers, the complainants, did not intend to part with the possession and all .right to and control over the goods, when they permitted the purchaser, Pike, to take them to his own store. He was to give an approved note or notes—not necessarily an endorsed note. They might have been satisfied with his own personal responsibility.—He was in good standing and credit at the time. They did not stipulate absolutely for the security of a third person, an endorser.

There is, therefore, less reason in such a case for supposing they did not intend a conditional delivery than in the case of a sale for approved endorsed notes. Besides, the delay on the part of the complainants in calling for the notes and their not seeking to obtain a return of the property until after they had heard of the purchaser’s failure and of his, having made an assignment, affords sufficient evidence of their having waived the condition, if any such were attached to the delivery.

One parcel of the goods was sold on the ninth of June and another on the twenty-second of the same month; and it was not until about the middle of July that Pike, the purchaser, failed and made an assignment for the benefit of his creditors—say on the seventeenth of July. He had all this time to make.sales of the goods. The complainants knew he bought them- to sell again. Did they then expect he would keep them on hand and that they could reclaim them or resume the possession at any length of time when' they might choose to call and not receive such note or notes' according to contract? In Furniss v.

Hone, 8 Wend. R. 247, it was intimated that a delay of seven days in sending for the notes would be considered a waiver of the condition. Even placing the present case on the footing of custom or usage, the delay here has been greater than is generally allowed. One of the witnesses for the complainant, Mr. Austin, says the notes are called for in most cases within ten days. Mr. Hone, another witness, states it to be within a fortnight, while Mr. Cruger, their clerk, from six to eight days. And there is no legal evidence before me that the notes were called for before they heard of the assignment.

If they did call for them sooner, certain it is they took no steps to get back the goods; and I think this sufficiently shows it was not a conditional delivery or that the condition was waived. But as to the point of conditional delivery. This is put upon the footing of a custom or usage of auction sales. The existence of such a custom is denied by the answer. It is a matter of fact put in issue ; and proofs have been taken. In the case of Furniss v. Hone and the cases there referred to, such usage was either expressly admitted or assumed to exist, because it was not denied.

The witnesses before named speak of it as a matter understood that when sales are made at auction for approved promissory notes and the goods are delivered, such delivery is conditional only and not perfect until delivery of the notes and, if the notes are not given, the property of the goods remains in the seller. Whether it is so understood by both parties or only by the seller is not stated. Other witnesses, however, who have been in the habit of buying goods at auction say thev have never heard of such a custom or usage in the v w > trade nor so understood it.

The difficulty about the tes.timony, on the part of the complainants, is that it amounts to no more than the mere opinion or private understanding of auctioneers. A custom must be proved by evidence of facts (and not by mere speculative opinions ;) by means of witnesses who have had frequent and actual experience of the custom. The testimony of those who speak from report only and not from particular instances within their own knowledge, if receivable at all, is of no weight: 4 Starkie, 452.

The witnesses here do not speak of particular instances within their own knowledge, where the right to reclaim goods has been asserted on the ground of such conditional delivery and been acquiesced in by purchasers. There is- no evidence of facts. No evidence that the purchasers have had frequent and actual experience of the custom ; and without this, I cannot say the custom exists. Upon these several grounds, I consider the complainants fail in their case.

It appears, moreover, from the testimony that very few of the goods sold by the complainants remained in specie and came to the hands of the assignees under the assignment, probably not enough to confer jurisdiction. I do not see how I can act otherwise than dismiss-the bill with costs.