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CHAPTER 44

TITLE AND THIRD PERSONS

§ 350. (Sales, Sec. 63.) Attempted sale by one not owner. In general.

Case 337. Uniform Sales Act, Sec. 23.

"(1) Subject to the provisions of this act, where goods are sold by, a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell.

(2) Nothing in this act, however, shall affect

"(a) The provisions of any factor's acts, recording acts, or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner thereof.

"(b) The validity of any contract to sell or sale under any special common law or statutory power of sale, or under the order of a court of competent jurisdiction."

Question 337: A steals B's watch and sells it to C who thinks the watch belongs to A. Does C get good title? Why?

A. When True Owner not Estopped to Assert Title.

§ 351. In general.

§ 352. In case of consignment for sale.

§ 353. In case of bailment other than for sale.

§ 351. (Sales, Sec. 64.) In general.

(Note: The quotation of the Sales Act set forth as Case No. 337, supra, states the law that where a person sells goods

that he does not own, the true owner can assert his title to them unless they were sold by a person who had real or apparent authority from the owner to sell them, or unless the owner is by his conduct precluded from stating that he is the owner. The question of real and apparent authority to sell was discussed in agency. What amounts to an estoppel to assert ownership, both as against purchasers from and creditors of a supposed owner, is to be considered here, including what we may term statutory estoppel, i. e. failure to observe rules of law established by statute governing this subject.)

§ 352. (Sales, Sec. 65.) In case of consignment for sale.

(Note: If one consigns goods to another for sale and gives that other no further apparent ownership than the mere possession necessary to the consignment, he may assert his title against creditors of the consignee and against the trustee in bankruptcy of the consignee. See § 290, supra.)

§ 353. (Sales, Sec. 66.) In case of bailment other than for sale.

Case 338. Fawcett v. Osborne, 32 Illinois Reports, 411. Facts: Suit at law brought to obtain the value of 2,000 sides of hemlock tanned sole leather. Fawcett, Isham & Co. had made a contract with W. H. & F. Stevens, by which the latter, who operated a tannery, were to tan leather for F. I. & Co. The hides when tanned were to be delivered to F. I. & Co. at New York City. In September, 1856, Fletcher Stevens, of the Stevens firm, shipped secretly, a large quantity of the leather manufactured from the plaintiff's hides to places other than New York City. Two thousand sides of this leather were shipped to Chicago, and there sold by a man who was in connivance with Stevens, to the defendant who made payment therefor. Plaintiffs having traced the leather into the hands of defendants demanded its return, which was refused. The defense made is that the sale under the circumstances to defendants vested title in them.

Point Involved: Whether the fact that the owner of the goods put the goods in the possession of a bailee to

do work thereupon estopped such owner to assert title against an innocent purchaser to whom such bailee in violation of his duty sold the goods.

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MR. JUSTICE BREESE delivered the opinion of the Court: The defendants contend that they bought the property in good faith, in the regular course of business, paying a full price in open market, and with no knowledge of a want of title in their vendor, in whose possession the property was, when purchased by them.

Assuming a name which did not belong to him, and inducing his agent, Stanton, to do the same, the defendants' vendor took this leather to Chicago, and there, unknown to the business men of that city, or to his vendee, the defendant here, with no evidence of title, documentary or mercantile, relying on his bare possession, fraudulently, if not feloniously obtained, the defendants become the purchasers of two thousand hides, of the estimated value of near eight thousand dollars. The ordinary inquiries and caution, usually exhibited in a large sale like this, seem not to have been made or observed in this transaction, and the question is plainly and distinctly raised, 'Has the real owner lost his title to the property by the force of the facts proved?'

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we

are satisfied that the plaintiffs had never parted with the property in this leather, or bestowed the possession of it upon anyone, with a view to a sale and disposal of it; nor have they given such evidence of a right to sell it, as according to the custom of trade, and the understanding of community usually accompanies the authority for disposal. The defendant's vendor had but a naked possession. This cannot prevail against the right to the real owner, who is entitled to follow his property, and reclaim it wherever found. The buyer should have 'taken care' that the title was in his vendor,-he having no title, the defendants acquired none.

"The rule we have sanctioned may seem a rigid one, and may involve purchasers in some perils, but it is a safeguard to the protection of the owners' rights in goods

and other property necessarily placed under the temporary control of others, and in their legal, though qualified possession."

Question 338: Does merely placing property with another for an honest purpose prevent the true owner from asserting title against one who innocently buys from such possessor? What were the facts in this case and the court's decision?

Case 339. Charles Moe Co. v. J. H. Logue Co., 108 Ill. Ap. 128.

Facts: The facts appear in the opinion.

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MR. PRESIDING JUSTICE BALL delivered the opinion of the Court: October 18, 1901, Logue, the president of appellee, gave a diamond to one Stein, to show to a prospective customer. It was not given Stein to sell. He was to return it at 2 p. m. of the same day, as another customer had the refusal of it. Instead of carrying out this agreement Stein pawned the stone to appellant for $100. Logue made demand on appellant for its return. The latter refused to comply unless the sum it had loaned upon the diamond was repaid. Thereupon appellee brought replevin, and recovered a judgment for $160, from which judgment this appeal was taken.

"It is an elementary rule of the law of personal property that no man can be deprived of it without his consent, or by operation of law. Another fundamental rule is that no one can sell a right which he does not have; that the purchaser takes nothing more than the rights of his vendor. With us the exceptions to this last rule arise only where the property is money or negotiable paper. In all other cases the purchaser cannot retain the property as against the owner unless it appear that the seller, by sale and delivery to him, though induced by fraudulent pretenses, had the indicia of title. Possession of personal property is indicative of title, but it is not title; and that alone will not protect the purchaser from the effects of a demand by the real owner."

Question 339: (1) State the facts, the question presented and the Court's decision in the above case.

(2) A was a jeweler. B asked him to let him take two diamond rings to his wife to see if she liked either one of them, and he would return them in two hours. B took the rings under this arrangement and pawned them to C. A brings replevin against C. Can he recover? (Hatowski v. Cassriel, 153 Ill. App. 239.)

(3) A having a diamond ring he wished to sell, entrusted it to B, a street jewelry peddler, asking B to match it, or if he could not do so, to obtain an offer for it (giving the jeweler no express authority to sell it). B sold the stone wrongfully to C, and absconded with the money. A brings replevin against C. Can he recover? (Levi v. Booth, 58 Md. 305.)

Case 340. Biggs v. Evans (1894), 1 Q. B. 88.

Facts: The plaintiff was the owner of an opal matrix table-top which he intrusted to an agent who was a dealer in jewels and gems, and as a known part of his business sold jewels and gems for other people. The table top was intrusted to the agent on the terms it should not be sold to any person nor at any price without the plaintiff's authority and that the check received in payment should be handed to the plaintiff intact.

Point Involved: Whether placing an article in the hands of a dealer in such articles, who also sells them for other people, to show to customers and secure offers thereon, estops the true owner to set up his title as against one to whom such article is sold in violation of authority.

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WILLS, J., delivered the opinion of the Court: In one sense every person who intrusts alı article to any person who deals in second-hand articles of that description enables him, if so disposed, to commit a fraud by selling it as his own. A man who lends a book in a second-hand bookseller puts it into his power in the same sense, to sell it as his own. A man who intrusts goods for safe custody to a wharfinger, who also deals in his own goods, or in other people's goods intrusted to him for sale, in such a sense enables him to commit a fraud by selling them to a customer. But such

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