#### Robert Soltau, Resp’t, *v.*Otto Gerdau, App’lt.1

*(Court of Appeals,*

*Filed February 25, 1890.)*

Larceny—One converting to ms own use goods intrusted to him to DELIVER, IS GUILTY OF—WAREHOUSE RECEIPT.

Ono Smith, a rubber broker, by falsely representing that he was authorized to purchase rubber for an Ohio company, induced plaintiff to import it for sale to them on credit, and having obtained from him a delivery order *396for the purpose of shipping it to the alleged purchasers, stored it in a warehouse in his own name, and obtained advances from defendant on the warehouse receipt on the understanding that the latter might sell the rubber to reimburse himself, which he did, and turned over the balance to Smith, who absconded. In an action by plaintiff to recover the value of the rubber from defendant, *Held,*that no title passed from Smith to defendant by the transfer of the warehouse receipt, as the acts of Smith constituted the offense of larceny.

(Rugeb, Oh. J., Peokham and Gbay, JJ., dissent.)

Appeal from judgment of the supreme court, general term, first department, overruling defendant's exceptions and sustaining judgment for plaintiff.

This action was brought by the plaintiff to recover the possession, or, in lieu thereof, the value of seventy-six baskets of prime Borneo rubber F. F., alleged in the complaint to have wrongfully, unlawfully and illegally come into the possession of the defendant between July 1 and November 1, 1885, and to be wrongfully, unlawfully and illegally detained by the defendant from the plaintiff. The answer of the defendant denies the alleged wrongful possession and detention of the rubber, and sets forth that he came into possession of it through one Henry A. Smith, a broker and dealer in rubber doing business in the city of New York; that he made advances to him on the rubber on the security of warehouse receipts therefor made out in his name under an agreement that, when the market was favorable, or when so ordered, he was to sell the rubber for his account, deduct the interest for the loan and a commission, and pay over the surplus to him ; and that pursuant to such agreement he did'subsequently sell the rubber, make the deductions agreed upon and pay over the surplus to him. The action was brought to 'trial at a circuit, and the material facts there established are as follows: The plaintiff, an importer,of rubber and gutta-percha, imported on the steamer Canada, which arrived at New York, February 22, 1885, ninety-three baskets of rubber, of which the seventy-six baskets mentioned in the complaint were a part. Smith was a broker in India rubber, and had previously acted as such for the plaintiff. Nearly two months prior to February, 1885, he had a conversation with the plaintiff, in which he stated to him that he could sell ten tons of Borneo rubber at forty cents to the Goodrich Company of Akron, Ohio, to which the plaintiff replied that he would sell them that amount and would cable for it. Thereupon Smith addressed a letter to the plaintiff under date of December 8, 1884, as follows: “ Goodrich will take ten tons F. F. Borneo at forty cents, but will probably wait ninety days on half of it, or else have it delivered in two lots. Will arrange that later on. Send your cable to-night.” On the next day Smith addressed another letter to the plaintiff as follows : “ Letter and telegram just found on my return. Closed the Borneo for Goodrich forty cents one-half commission. Best can do. Will call to-morrow.” Thereupon the plaintiff cabled for the ten tons of rubber. Thereafter Smith delivered to the plaintiff the following contract, dated December 7, 1884:

*397“ Sold to The B. F. Goodrich Co., Akron, 0.: For account of Robert Soltau, Esq., about twenty-two thousand (22,000 lbs.) of prime BorTT A qMTrmr J ne0 rubber (mark F. F.) to be delivered during ' ’ the first half of the month of March, 1885, at 40c. per lb., half cash sixty da3's after delivery, and half cash ninety days after delivery. “ H. A. Smith.

“ Half brokerage, H. A. S., Broker in India rubber, 17 William street

“Ho responsibility taken, unless by special agreement.”

Soon after the arrival of the rubber on the steamer the plaintiff ' gave to Smith, as broker, a delivery order therefor addressed to the steamer company as follows: “ Please deliver to bearer, F. F., ninety-three baskets Borneo rubber, ex-Canada, arrived February 22, 1885.” This order was given by the plaintiff to Smith for the sole purpose of enabling him to make delivery of the rubber to the Goodrich Company, pursuant to the supposed contract contained in the bought note above set forth.

After this delivery order was given to Smith he stated to the plaintiff that the rubber had in fact been shipped to the Goodrich Company in fulfillment of the supposed contract of sale; but as matter of fact the alleged contract was a pure fabrication, he never having obtained any such contract or had any negotiations whatever l’or the sale of the rubber to the Goodrich Company. He obtained possession of the rubber by means of the delivery order, and on March 2, 1885, without the knowledge of the plaintiffs, he .stored the same in the warehouse of Lawson B. Bell, 518 Washington street, Hew York, and he subsequently took out a negotiable warehouse receipt' for it in his own name, in the following form:

‘Ho. A, 326. Hew York, *May*6, 1885. “ Received on storage, in 516-18 Washington street. ’ From Mr. H. A. Smith, and deliverable only upon the return of this receipt, marks ex. S. S. Canada, March 2, ’85, F. F. 76 baskets (76) seventy-six baskets rubber. Storage, 4c. per month. Labor in and out, _4c. Endorsed: H. A. Smith. "Lawson B. Bell.

While the rubber was in Bell’s warehouse unknown to the plaintiff, Smith stated to him that the Goodrich Company desired to return seventy-six of the ninety-three baskets of the rubber claimed to have been shipped to that company on the supposed contract, and thereupon the plaintiff instructed him to take them back. This he made a pretense of doing, and on April 23, 1885, he wrote a note to the plaintiff stating that he had secured the .seventy-six baskets from the Goodrich Company, and at the Ramo time he sent to him a pretended contract of sale of the rubber to the Boston Rubber Shoe Company, as follows:

*398“Sold to Boston. Rubber Shoe Co., 'For account of-Robert Soltau, Esq., about five-(5) tons of prime Borneo rubber, to be delivered, at any time during month of July, 1885, at 43c. _ per lb. net, cash thirty days after delivery. “ No responsibility taken unless by special agreement. “H. A. Smith.” H. A. Smith.

Previous to the delivery of this contract of sale, and on or about April 15th, Smith had written to the plaintiff that the Boston Rubber Shoe Company would take 100 peculs F. F. at forty-three cents, July delivery, about seven tons, and he wanted plaintiff to cable for it; but the plaintiff declined to do so, and said he would send that rubber to the Boston company which the Goodrich Company desired to return. But at this time there had not been, nor was there subsequently, any negotiation whatever between Smith and the Boston Rubber Shoe Company for the sale of the rubber. After sending this last-mentioned contract to the plaintiff, Smith stated that he had the seventy-six baskets mentioned therein stored in the warehouse of E. E. Driggs in the name of the plaintiff. Plaintiff requested Smith to deliver to him the warehouse receipts for the same, but he made excuses, and the-pretended receipts were never delivered to the plaintiff. Smith during all the time having the rubber stored in his own name in Bell’s warehouse. For the purpose of further concealing his conversion of the rubber, Smith got from the plaintiff on or about. June 29, 1885, a delivery order for the rubber addressed to the warehouseman Driggs, with whom the plaintiff supposed the rubber to be stored in his (the plaintiff’s) name, as follows: “Please-deliver to bearer F. F. seventy-six baskets Borneo rubber, and oblige yours truly, Robert Soltau.” This delivery order was obtained on the pretence and for the sole purpose of making delivery of the seventy-six baskets of rubber to the Boston Rubber Shoe-Company. On the 7th of May Smith took the warehouse receipt received by him from.Bell on the day previous to the defendant, and on the faith thereof received an advance of $2,000 from him, and delivered the receipt to him, with the understanding that the defendant might sell the rubber to reimburse himself and pay over the balance of the proceeds to Smith. Thereafter the defendant did sell the rubber, and after deducting the sum advanced by him, and interest and commissions, he paid over the balance of the proceeds to Smith.

At the close of the evidence the court directed a verdict in favor of the plaintiff. The general term having affirmed the judgment entered thereon, the defendant appealed to this court

Theo. *W. Dwight*and *M B. Corners,*for app’lt; *Mark*Cohn, for resp’t

1

 Affirming 15 N. Y. State Rep., 941.

Earl, J.

The trial judge held that the facts of the case showed that the broker, Smith, obtained the rubber from the plaintiff by larceny, and upon that ground directed the verdict. There were no disputed facts, and we think the evidence so clearly established the larceny that there was nothing in reference thereto to submit *399to the jury. It is entirely clear that Smith intended, from the beginning of his negotiations with the plaintiff in reference to the rubber, to steal it. No other conclusion or inference, from the evidence, is justifiable. . The plaintiff did not intend to part with the title of the rubber to Smith, and at most intended that he should have possession of it for a special purpose. He meant only to part with the possession of the rubber to Smith that he might make delivery of it to the Goodrich Company under the prior contract of sale, while Smith intended to steal the rubber, and thus the crime of larceny was committed. *Bassett*v. *Spofford, 45*N. Y., 387; *Loomis*v. *The*People, 67 id., 322; *Thorne v. Turck,*94 id., 90; *People*v. *Morse,*99 id., 662; 2 Bishop on Crim. Law, 7th ed., §§ 799, etc.

At tire time the first delivery order was delivered to Smith the property was legally in the possession of the plaintiff, and the moment Smith took it he became a trespasser, the theft was complete, and he could at once, without any demand, have been sued for the trespass. The title of the property and the right of possession remained in the plaintiff, and he was deprived of the actual possession thereof wholly by the trespass and theft In the law he never consented to part with the possession of the property, and Smith never had possession thereof, rightfully or legally, for one moment. Nothing which subsequently occurred changed the character of Smith’s possession. The subsequent delivery order which the plaintiff was induced to give to him, directed to Driggs, in whose warehouse he falsely represented the rubber to be, had no effect whatever. It gave Smith no dominion or control of the rubber, and in no way divested the plaintiff of any control or possession thereof which he then had. It was absolutely nugatory for every purpose.

The property had then, for nearly two months, been stored in the warehouse of Bell, in Smith’s own name, and the warehouse receipt had for nearly two months been pledged to the defendant. From the time Smith first took possession of the rubber his possession, so far as he had any, was solely that of a thief, and the actual possession and control of the property was never thereafter restored to the plaintiff. The plaintiff must, therefore, be treated as having been deprived of his property by the common law crime of larceny, and it follows that the thief could not, independently of the factors’ act, confer any title or right of any kind as against the plaintiff, upon any other person. The defendant, therefore, got no rights to this rubber, and' had no right to deal therewith or dispose of the proceeds thereof in any way, and the plaintiff’s recovery against him is unquestionably right, unless he is protected by the factors’ act.

It is provided in § 3 of the act, chap. 179 of the Laws of 1880, commonly called the factors’ act, as follows: “ Every factor or other agent entrusted with the possession of any bill of lading, custom-house permit or warehouse keeper’s receipt, for the delivery of any such merchandise, and every such factor or agent not having the documentary evidence of title, who shall be entrusted with the possession of any merchandise for the purpose *400of sale, or as a security for any advances to be made or obtained thereon, shall be deemed to be the true owner thereof, so far as to give validity to any contract made by such agent with any other person, for the sale or disposition of the whole or any part of such merchandise, for any money advanced or negotiable instrument or other obligation in writing given by such other person upon the faith thereof.” Statutes similar to this have for many years existed in England, and in most, if not all, the states of the Union, and it has never yet been held, nor so far as we can discover, claimed, in any reported case, that the factors’ act can have any operation whatever in the case of goods taken by a common law larceny from the true owner.

If the documents mentioned in the section quoted have been stolen from the owner then it cannot be said that the thief was entrusted with their possession; and when a factor or agent obtains goods from the true owner by a common law larceny it cannot be said that he is entrusted with their possession for the purpose of sale. To bring the case within the section quoted the factor or other agent.must be consciously and voluntarily entrusted with the possession of the documents or merchandise, and the section can have no application whatever to a case where the documents or goods are taken by trespass, or theft, and thus the possession of the factor or agent is from the beginning tortious, wrongful and unlawful The first section of the factors’ act provides as follows: “After this act shall take effect, every person in whose name any merchandise shall be shipped shall be deemed the true owner thereof, so far as to entitle the consignee of such merchandise to a lien thereon,” for any money advanced, or negotiable security given, etc., and yet notwithstanding the broad and explicit language of this section it was held in *Kinsey*v. Leggett, 71 N. Y., 387, that it has no application to a case where the property has been wrongfully taken from the possession of the owner and then fraudulently appropriated, and that it applies only to cases where the shipment of the property is made with the consent of the real owner in the name of another, thus conferring upon the latter apparent ownership and right of control. In *Howland*v. *Woodruff,*60 N. Y., 73, it was held that the factors’ act was intended, for the protection of third parties who, in good faith, and in ignorance of any defects of title, advance money or incur obligations upon the faith of merchandise and the apparent ownership thereof by factors or agents who have been entrusted by the owners with the possession of, or with the documentary evidence-of title to, property; that it was the act of the owner in thus conferring upon his factor the apparent ownership and right of disposal, together with the fact that an innocent third person had dealt with the latter in reliance thereon, that estops the former from following his property; but that in order to estop the owner, where the factor has not the documentary evidence of title, actual possession is required.

In that case Allen, J., said: “It is the act of the owner in entrusting the factor with the possession of the goods, or the documentary evidence of ownership, and right of disposal, in connection *401with the fact that innocent third persons deal with him upon the faith of such apparent ownership, that estops the owner from following his property into the hands of *bona fide*vendees or pledgees, and gives the latter a better title than their vendor or pledgor hacL” The doctrine of estoppel has never been applied against an owner who has been deprived of his property by larceny. Judge Allen further said, that it was not the intent or the general scope of the act to deprive owners of their property without any fault or act of theirs, and that “ the act was intended for the security of those who deal with a factor or agent in the belief that he is the true owner, and that belief must be induced by the act of the owner in entrusting the factor or agent with the apparent ownership.” An owner who is deprived of his property by theft, is guilty of no act upon which another has the right to rely, and cannot in law be said to entrust the thief with his property. The case of *Collins*v. *Ralli,*20 Hun, 246, affirmed in this court 85 N. Y., 637, upon the opinion delivered in the supreme court, is entirely analogous to this, and is a very precise authority for the conclusion we have reached. There H. M. Cutter, a cotton broker, called upon the plaintiff, and by falsely and fraudulently representing that he was authorized to purchase cotton for certain mills in Massachusetts, induced the plaintiff to sell certain cotton to the mills and deliver to him a bill of sale thereof to the mills. Upon the representation that he desired to ship the cotton immediately, Cutter procured from the plaintiff a delivery order upon the warehouseman, at whose warehouse Cutter had the cotton weighed and marked and loaded upon a truck. Subsequently, Cutter stored the cotton in another warehouse, and took out receipts therefor from the keeper of such warehouse in his own name first, and afterwards in the name of his brokers. Thereafter the defendants purchased the cotton in good faith and for value through their brokers, receiving the warehouse receipts therefor, and subsequently shipped it to Liverpool. Cutter having absconded, without having paid for the cotton, the plaintiff brought the action against the defendants to recover the value of the cotton received and converted by them ; and it was held that Cutter was guilty of larceny in fraudulently obtaining the temporary custody of the cotton, and thereafter converting it to his own use, and that the defendants acquired no title to it by reason of his transfer of it to them; that as the plaintiff had merely entrusted Cutter with the temporary possession of the cotton to enable him to weigh and cart it for shipment to the pretended purchasers, and had never conferred upon him the apparent title thereto, or any authority to dispose thereof, he was not estopped from reclaiming it from the defendants, though they had purchased it in good faith; that the defendants were not' protected by § 6 of chap. 326 of the Laws of 1858, providing that warehouse receipts may be transferred by indorsement, and that any person to whom the same may be transferred shall be deemed and taken to be the true owner of the goods therein specified, so far as to give validity to any pledge, lien or transfer made or created by such *402person or persons, as such provision only applies to receipts given for goods stored or deposited by persons having the title thereof, whether real or apparent, or authority so to do from such real or apparent owner. There, as here, the broker pretending that he had effected a sale of the goods, obtained a delivery order from the plaintiff, and thus having obtained possession of the goods, stored the same in his own name and thereafter sold them to a *bona fide*purchaser. That case was subsequently followed by *Hentz*v. Miller, 94 N. Y., 64, growing out of the misconduct of the same broker. The learned counsel for the defendant has attempted to distinguish those cases from this. His attempted distinctions are very ingenious, but we fail to find any distinction in principle between those cases and this.

The decision of this case could, we think,'be put upon a narrower ground than the one upon which we have thus far placed it. The' delivery order given by the plaintiff to Smith that he might make delivery of the rubber to the Goodrich Company was not, within the meaning of the factors’ act, documentary evidence of title. It was not a bill of lading, custom house permit or warehouse keeper’s receipt It was no evidence whatever of title, and whatever it was it was not seen by the defendants, and they did notact on the faith thereof. Nor was Smith entrusted with the possession of the rubber “ for the purpose of sale.” So far as the plaintiff entrusted him with the possession it was simply that he might make delivery of the rubber in pursuance of the contract of sale which he pretended he had nearly three months previously obtained.

There is therefore no aspect of this case, either at common law or under the factors’ act, from which it can be said that the defendant obtained any title whatever to the property of the plaintiff.

The learned counsel for the appellant in his argument places great reliance upon the case of *Baines*v. Swainson, 4 Best & Smith; 270. There the plaintiffs, cloth manufacturers, were applied to by one Ernsley, who was a factor and commission agent, for a sample of their cloths, on the representation that he could get them a purchaser. The samples having been sent, Ernsley afterwards told the plaintiffs that he had got them an order for a certain number of ends at a stated price. The plaintiffs required to know the purchasers, and Sykes & Son being mentioned, they sent the goods to the warehouse of Ernsley who was to pass them on to Sykes & Son after seeing the process of perching performed upon them, for which he was to receive a commission from the plaintiffs of one shilling per end. Ernsley had no authority from Sykes & Son, and he sold the goods to the defendants who were cloth merchants and bought them *Iona fide,*and it was held per Wightman & Crompton, JJ., that Ernsley was an agent “ entrusted ” with the cloths within the meaning of the factors’acts, 6 G. IY, chap. 94, § 4, .and 5 and 6 Viet., chap. 89, § 4, and that consequently the purchase of them from Ernsley by the defendants was protected; and per Blackburn, J., that Ernsley being in possession of the goods, he was, according to the statutes, 5 and 6 Viet., chap. 89 § 4, to be taken to be “ entrusted ” with them by the owner, unless the *403contrary was shown, and that was a question for the jury. Under those statutes to bring a transaction within their provisions it was not necessary that the goods should be entrusted to an agent for sale, but it was sufficient if there was any mercantile agency; and if the goods were entrusted to a person whose business it was to deal in goods and make sales of them, he was such an agent as was contemplated by the statutes, although they were not entrusted to him for sale. Our factors’ act is different.

In order to bring a case within it, it must appear that the goods were entrusted to an agent for sale, and it is not sufficient that they were entrusted to a mere commercial agent, or to one whose business it was to make sales of goods. Our statute contemplates the act of the owner in voluntarily and specifically entrusting the goods to some factor or agent for sale, and to no other agent, and for no other purpose. It is by no means certain that that case would have been decided the same way if the English factors’ act had been like ours. That case is further distinguished from this in that there was no claim made there that the goods had been obtained by Ernsley from the plaintiffs by larceny, and the question of larceny received no consideration. So, while that case bears some analogy to this, we do not consider it of controlling weight. The case of *Vickers*v. Hertz, L. R., 2 Scotch and Divorce Appeals, 113, is also clearly distinguishable from this. There Vickers ordered 800 tons of pig-iron from the Carrón Company, and while they held it at his disposal he employed Campbell Bros, to sell it for him. They wrote to him: “We can now get your price.” He agreed, and sent them an order in the following terms: “To the Carrón Company. Please deliver to Messrs. Campbell Bros.” Campbell Bros., instead of employing the document for the purpose of giving delivery to the supposed purchaser, represented the iron as their own, and asked Hertz to make them an advance upon it. Hertz declined until the document should be stamped, and a place of delivery inserted by Vickers. These requirements having been satisfied by Vickers the Carrón Company wrote to Hertz, saying: “We have placed the pig-iron endorsed by Thomas Vickers, Esq., to your credit.” Hertz thereupon advanced to Campbell Bros. 2,400 pounds. The act of Campbell Bros, was a gross fraud upon Vickers, who knew nothing of the transfer to Hertz, although he had unsuspectingly facilitated its accomplishment. Campbell Bros., having become bankrupt, disappeared, and an action was brought by Vickers against Hertz for a delivery of the iron. The defense was that the iron had been acquired by Hertz legitimately under an order endorsed by Vickers and delivered by his factors to Hertz,' who afterwards sold it for less than he had advanced upon it.

Judgment was given in favor of the defendant in that case, which, upon appeal, was affirmed. There was r.o question of larceny considered. That case was decided under 5 and 6 Viet, chap. 39, in the third section of which it is provided that “ any agent entrusted with the possession of goods, or of the documents of title to goods, shall be deemed and taken to be the owner of such goods and documents, so far as to give validity to any con*404tract or agreement by way of pledge, lien or security *bona fide*made by any person with such agent so entrusted; ” and in § 4 of which it is provided “ that any order for the delivery of goods, or any other document used in the ordinary course of business, as proof of the possession or control of goods, shall be deemed and taken to be a document of title within the meaning of this act.” And it was held there that the delivery order given by the plaintiff to Campbell Bros, was a document of title within the express and plain meaning of the act, and that therefore the defendant, a purchaser from them, was protected.

It is not very profitable to inquire what would have been the position and rights of these parties if the sales pretended to have been made by Smith had been real, or if the rubber had been, by the delivery orders, placed in his hands for sale on behalf of the plaintiff, an undisclosed principal. The pretended sales, and all the other pretenses of Smith, were mere shams ; devices used by him to accomplish the larceny, and the fact of larceny must dominate this case. The rubber was never in his possession for sale. Six weeks before it arrived in this country he had, as a broker, made the pretended sale to the Goodrich Company, and after its arrival he obtained the delivery order, not to make a sale, but to make a delivery of the rubber upon a contract which, if real, was previously binding upon the parties thereto.

But if the pretended contract of sale to the Goodrich Company had been real, and the plaintiff had given to Smith the delivery order to enable him to obtain possession of the rubber for delivery upon the contract, this action would still be undefended. In that case, if he obtained the delivery order with the preconceived design to convert the rubber to his own use, he would have been guilty of larceny with the effect and disability above mentioned. If he conceived the design to appropriate the rubber to his own use, after it came into his possession, he would not have been'guilty of larceny, but would still have been unable to confer any title thereto upon the defendant. Then he would have had possession of the rubber for the sole purpose of making delivery thereof upon a real contract, and he would have had the mere possession thereof and nothing else. He would have been clothed with no *indicia*of title, and with no apparent right to sell. While mere possession of goods is frequently *prima facie*evidence of title, it is merely *prima facie.*Whoever deals with the possessor does it at his peril, and a purchaser from one having no other apparent title to goods than the possession thereof, must see to it that his seller has the title; and if his title fails, and he is obliged to respond to the true owner of the goods, his loss is due to his own misplaced confidence, and not to that of the owner. Owners of goods, for commercial and other purposes, must frequently entrust others with the possession of them, and the affairs of men could not be conducted unless they could do so with safety. So long as the possession of the goods is not accompanied with 'some *indicia*of ownership, or of right to sell, the seller has no more power to divest the owner of his title, or to affect it, than a mere thief. Here the defendant could have inquired into the title of *405Smith before he took the rubber in pledge, and his loss is due, not to any wrong, neglect or misplaced confidence of the plaintiff, but to his own neglect and abused confidence. Smith having received the goods for delivery to the Goodrich Company, could no more pledge them than a common carrier, a depositary, a bailee to do some work upon them, or a mere servant. He had no general agency, but his power was limited to the special purpose for which the rubber was given 'into his possession. A valid contract of sale having been made binding upon the plaintiff, he was not bound to make delivery through his broker, but he could have delivered the rubber through any other agent, and no one will claim that if the rubber had been put into the possession of a mere agent (not the broker), for delivery, a purchase from such agent would have divested the plaintiff of his title.

A little more may be said to show that Smith obtained no title to the rubber. There is no real evidence that it was intended by him or the plaintiff that he should have the title. He solicited of the plaintiff the right to act as his broker. He delivered to the plaintiff a bought note showing that the rubber was sold in his name and so his property, and if the transaction had been real, he would, according to the previous custom and his understanding with the plaintiff, have given the purchaser a sold note indicating a sale on account of his principal without writing therein the principal’s name. Thus he would have brought the seller and buyer together, and would have made a contract of sale binding upon them incurring no responsibility himself but that of a broker. *Southwell*v. *Bowditch,*L. R., 1 C. P. Div., 374. He obtained the delivery order, not to deliver rubber upon his contract, but upon plaintiff’s contract. He consulted the plaintiff about taking the rubber back from the Goodrich Company and obtained his consent therefor. He subsequently professed to store it in plaintiff’s name, and at all times subsequently professed to the plaintiff to deal with and treat it as his. Clearly beyond any question the plaintiff and Smith understood that the title to the rubber was in the plaintiff and never in Smith; and without the intention of one or both of them it could not pass from the plaintiff to Smith. The entries upon the plaintiff’s books in reference to the rubber were mere matters of bookkeeping, having no reference to the title to the rubber, but merely to its proceeds which were expected to reach plaintiff’s hands through Smith, "as his broker.

We have given careful attention to the exhaustive and learned brief of the counsel for the defendant, and while this case is not free from some difficulty, we are constrained to hold that it was properly disposed of below, and that the judgment there should be affirmed, with costs.

Andrews, Finch and O’Brien, JJ., concur on ground that there was a common law larceny; Ruger, Ch. J., Peckham and Gray, JJ., dissent.