#### Thomas K. Jones *et al. versus*Luke Baldwin.

The vendee of goods having left them in the warehouse of the vendor for safe keeping, and being desirous of raising a sum of money upon them, applied to the plaintiffs, who advanced him the money, taking his order on the vendor for the delivery of the goods to them, which was expressed to be for value received, and which had been accepted by the vendor. The goods, by agreement, were soon after sent to the plaintiffs’ store, where they were put up to auction, but were not sold 5 and the vendee, after suggesting to the plaintiffs that it would be better to send them back to the vendor’s warehouse, requested the vendor to send for them 3 which he did 5 and they were accordingly returned to his warehouse, his acceptance still remaining in the hands of the plaintiffs. The goods were after-wards removed by the vendor, with the consent of the vendee, to another warehouse of the vendor, and while there they were attached in suits brought by.the vendor and others, as the property of the vendee, the money advanced by the plaintiffs having never been repaid to them 3 and the attaching officer refused to deliver the goods to the plaintiffs upon a demand made by them. It was held, that the plaintiffs had a special property in the goods as pledgees, the general property being in the vendee 3 that the form of the order accepted by the vendor, being for “ value received/ was notice to him of the plaintiffs’ lien 5 that he received the goods, when sent back to him, as the bailee of the plaintiffs 5 that any fraudulent representation, made without the plaintiffs’ knowledge, by the vendee to the vendor, that the plaintiffs’ lien had been extinguished, would not affect their rights 3 and that they might maintain trover against the officer.

Trover to recover the value of a pair of looking-glasses attached and sold by the defendant, a deputy sheriff, as the property of Selden Braynard. The declaration alleges the conversion to have taken place on January 23, 1830.

At the trial, the plaintiffs produced the deposition of Braynard, in which he testifies, that he purchased the glasses of Doggett & Co. in March 1825, for $600, and took a bill of sale of them, and at the same time it was agreed between them, that if the glasses did not fit his rooms, Doggett & Co. should not charge him storage, until he should have made some disposition of them; but it was then expected that he would use them immediately. In 1827, while they remained in the warehouse of Doggett & Co., the deponent, wishing to raise *322money upon them, applied to the plaintiffs for an advance of *$*400 upon them, whereupon an order was drawn, addressed to Doggett & Co. and signed by the deponent, as follows : — “Please deliver Messrs. Thomas K. Jones & Co. one pair of large looking-glasses purchased by me of you for $ 900, for value received ; ” which was Indorsed, “ Accepted John Doggett & Co.” Upon giving this order, thus accepted, to the plaintiffs, they advanced to the deponent the $ 400 ; it being then agreed that the glasses should be advertised and sold within a convenient time, but at a limited price, so that they should not be sacrificed. The glasses remained in Doggett & Co.’s store eight or ten days after the acceptance of the order ; and a day or two previous to the time fixed for the sale, they were sent by the order of the plaintiffs to their auction store. They did not however bring the price limited, and therefore were not sold. Soon afterwards the deponent, knowing that an auction store was an improper place for valuable articles of this sort, suggested to Dehon, one of the plaintiffs, that it would be better to have the glasses sent back to Doggett & Co.’s warehouse, and the deponent accordingly called and requested Doggett & Co. to send their men to take the glasses back, the deponent presuming that their men would handle glasses with more care than the plaintiffs’ men. The glasses were carried back .accordingly. Nothing was then said to Doggett & Co. by the deponent about their acceptance, or of any relinquishment by the plaintiffs of their claim under it. Some time after the glasses had been sent back to the warehouse of Doggett & Co., they wished to have them taken away, and they spoke to the deponent about it several times ; and he replied, “we are in hopes of doing something with them shortly, so as to have them removed.” Doggett & Co., as the deponent believed, asked him why he would not take the glasses to his house on Jamaica Plains; but the deponent made some plausible excuse, knowing that he had no right to remove the glasses until the plaintiffs were settled with. At last Doggett & Co. suggested that they should be sent to their store in Roxbury, and the deponent replied that he thought that was the best way they could be disposed of. The deponent afterwards understood from Doggett & Co. that the *323glasses were sent to Roxbury, but he had nothing to do with them after requesting Doggett & Co. to send for them as before mentioned. The deponent had never repaid the plaintiffs. Doggett & Co did not (to the deponent’s knowledge,) know that the plaintiffs had made the advance to the deponent. The deponent never exercised any right of ownership or control over the glasses, after the acceptance was given. The deponent believed he obtained leave of the plaintiffs to have them sent to Roxbury, but there was no evidence that Doggett & Co. had notice of it.

It was admitted that the glasses had been attached while in the store of Doggett & Co. at Roxbury, in suits brought by them and by others against Braynard, and were in the custody of the defendant, who had advertised them for sale by auction by virtue of executions obtained in those suits, on January 23, 1830 ; and that on that day the plaintiffs demanded the glasses of the defendant, showing the acceptance, and in the presence of Braynard, and that the defendant refused to deliver them; and that they were afterwards sold by his orders.

The defendant introduced one Clark as a witness, who testified, that on April 10, 1829, a few days after the attachments had been made, he called upon Dehon, and inquired of him what claim he had on these glasses, then in Doggett & Co.’s possession ; whereupon Dehon exhibited the acceptance in the case, and said that he had advanced *§*400 upon them. The witness inquired whether he took a bill of sale, and he replied that he did not, and that the order was all the claim he had. The witness asked if he ever told Doggett & Co. that he had a claim on the glasses, and he answered “ never,” and that he thought it unnecessary to give notice, as he had their written acceptance.

If upon the testimony the Court should be of opinion that the plaintiffs were entitled to recover, judgment was to be rendered accordingly ; otherwise, for the defendant.

C. *G. Loving,*for the plaintiffs,

to the point that Doggett & Co., by their acceptance of Braynard’s order, became the bailees of the plaintiffs, cited *Harman*v. *Anderson,*2 Campb. 243; *Stonard*v. *Dunkin,*ibid. 344; *Searle*v. *Reeves,*2 Esp. Rep 598; *Elmore*v. *Stone,*1 Taunt. 458; *Phillimore*v. *324*Barry,*1 Campb. 513; *Lucas*v. *Dorrien,*7 Taunt. 278; *Wilkes*v. *Ferris,*5 Johns. R. 335; *Chapman*v. *Searle,*3 Pick. 38.

*323*March*10M

*324*March 19th.*

*Curtis,*for the defendant,

said that the plaintiffs’ interest in the glasses was that of pawnees, with an authority to sell; that when they were sent to the plaintiffs’ store, the acceptance of Doggett & Co. was satisfied; that they were sent back by Braynard’s orders, without notice to Doggett & Co. that he was acting in behalf of the plaintiffs, and were afterwards removed to Roxbury by the consent of Braynard alone ; and that the plaintiffs had thus parted with the possession, and consequently their lien was lost. Story on Bailm. 209, § 311; 4 Kent’s Com. 132; *Homes*v. *Crane,*2 Pick. 610; Yelv. (Metcalfs edit.) 179, note; *M'Lean*v. *Walker,*10 Johns. R. 471; *Cortelyou*v. *Lansing,*2 Gaines’s Cas. in Err. 200; Code Civil, *art.*2076; *Garlick*v. *James,*12 Johns. R. 146.

Wilde J.

delivered the opinion of the Court. This case is submitted upon the evidence which appeared at the trial, the parties agreeing to the facts as stated by the witnesses.

The action is trover for the conversion of a pair of looking-glasses, and the defendant admits that he took the glasses and -sold them as the property of one Braynard; so that the only question is, whether at the time of the taking, the plaintiffs had such a property or right in the glasses as to enable them to maintain this action.

The glasses were purchased of Doggett & Co. by Braynard, in the year 1825, and were intended for his own use ; but finding that they did not fit his roams, they were suffered to remain in Doggett & Co.’s store for safe keeping, until 1827, when Braynard, wishing to raise money upon them, applied to the plaintiffs for that purpose ; who agreed to advance $ 400, taking an order on Doggett & Co. for the delivery of the glasses, which was accepted by them; and thereupon the $ 400 was paid to Braynard. The first question is, whether by this transaction the property in the glasses passed to the plaintiffs.

By the payment of the money, and by the terms of the order, if there were no other evidence in the case, it might be presumed that a sale of the glasses was intended by the parties. The order was drawn for “value received,” which may *325be construed as an admission that the price had been paid. But this construction would be inconsistent with the other evidence in the case, by which it appears that no sale of the glasses to the plaintiffs was ever contemplated ; but that they were delivered as security for an advance of money ; and the order may be reasonably construed in conformity with this evidence. We think, therefore, that the general property remained in Braynard, notwithstanding the advance of money and the delivery of the glasses to the plaintiffs. There is no evidence to show that the transaction was intended to operate as a mortgage rather than a pledge; and it cannot so operate, unless it can be made to appear that it was the intention of the parties that the legal property should pass, liable to be defeated by the performance of a condition. There is ho evidence to show any such intention, and consequently the question does not arise, whether a mortgage of personal property can be created by a parol agreement not reduced to writing.

We consider, therefore, that the general property remained in Braynard, and that the plaintiffs only acquired a special property or lien by their advance of money and the acceptance of the order by Doggett & Co., who were the depositaries of the looking glasses. To this extent the plaintiffs had a valid title to the possession, which could only be defeated by the payment of the money advanced, or by the relinquishment of the possession by the plaintiffs. By the acceptance of the order the plaintiffs acquired a legal possession. As between Braynard and the plaintiffs the acceptance amounted to a delivery of the glasses, and *ipso facto*Doggett St Co. became the bailees of the plaintiffs. Under a bill of sale this would have amounted to a valid delivery. But it was agreed between Braynard and the plaintiffs, that the glasses should be sold by the plaintiffs by auction, at a limited price, however, to prevent a sacrifice of the property ; and by order of one of the plaintiffs the glasses were sent to the plaintiffs’ auction room by Doggett St Co., soon after the acceptance of the order ; and this, as the defendant’s counsel contend, was a full discharge of the obligation of Doggett St Co.’s contract; and this certainly cannot be controverted, as the facts then were ; and if the plaintiffs had relinquished the possession to Braynard *326after the attempt to effect a sale had failed, undoubtedly the plaintiffs’ lien would have been discharged. But the fact was otherwise; the possession was not relinquished to Braynard. At his suggestion the glasses were sent for by Doggett & Co., and were delivered to his men by order of the plaintiffs. There is nothing in the evidence to show that the plaintiffs intended to relinquish their lien, or to show that Doggett & Co. had any reason to suppose that such was their intention. The suggestion or request made by Braynard to send for the glasses, was perfectly consistent with the plaintiffs’ lien, he having the general property, and having a right to redeem the pledge. But if it were otherwise, and Braynard had fraudulently pretended that the pledge had been redeemed, still it would not defeat the plaintiffs’ right, unless they had notice of such fraudulent pretence, and nevertheless suffered Doggett & Co. to retain the possession as the bailees of Braynard. If any such representation had been made by Braynard, fair dealing would have required that Doggett & Co. should have taken up the order when they sent for the glasses, or otherwise notified the plaintiffs that they intended to bold the glasses as the property of Braynard. But in fact Braynard, when he requested Doggett & Co. to take the glasses back, made no intimation that the pledge had been redeemed or relinquished ; and they had no reason to suppose it. From the terms of the order, they had notice of the lien, the order being for value received ; so that they could not suppose that the plaintiffs were employed by Braynard merely as auctioneers to make sale of the glasses. It is clear then, we think, that when Doggett & Co. took back the glasses, they received them to keep as they had before kept them, under the accepted order of delivery ; and for this reason probably the order was not called for. At that time, therefore, they again became the bailees of the plaintiffs and not of Braynard.

*Judgment for the plaintiffs.*