#### WESTON et al. v. BROWN et al.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Conditional Sale—Liability of Buyer.

In an action for the price of lumber, it appeared that the contract of sale stipulated that the lumber, and the proceeds of all resales thereof by the buyer (defendant), should be the property of the seller (plaintiff) until payment in full, and that all money received by defendant for the sale of lumber by him should be money had and received for plaintiff until payment -in full of the entire sum. *Held,*that plaintiff was entitled to recover moneys received by defendant on sale of such lumber, and it was immaterial whether such sales were absolute or conditional.

Appeal from judgment on report of referee.

Action by Abijah Weston and Charles Weston against Daniel G. Brown and Carrie M. Hasbrouck to recover a balance alleged to be due for lumber sold and delivered by plaintiffs to defendants. There was a judgment in favor of plaintiffs for $117,719.92, and defendants appeal.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Rudd & Hunt, for appellants.

F. P. Bellamy, for respondents.

*676DYKMAN, J.

This is an appeal from a judgment in favor of the plaintiffs against the defendants for $117,719.92, entered upon the report of a referee. The complaint contains 50 causes of action, 49 of which are upon promissory notes given to the plaintiffs by the defendants on account of lumber. The fiftieth cause of action is-for a balance due upon the account for the lumber, for discounts paid upon the paper, and for money paid for freights. The referee-found that the lumber which constituted the consideration of the 49 notes was a portion of the lumber which was the subject of the-account set up in the fiftieth cause of action in the complaint, and his decision was based upon that account. The defense of the action was that the notes were accommodation paper, and that the lumber for which the plaintiffs claim was not sold to the defendants, but was consigned to them to be sold for the plaintiffs. The lumber was shipped by the plaintiffs to the defendants under a written agreement, which provided for a conditional sale, as the plaintiffs claim, and not for a consignment for sale, as the defendants insist. The question arises between the immediate parties to the agreement, and no rights of creditors or bona fide purchasers are-involved. It was, however, much more than an agreement for the consignment of goods for sale to the *plaintiffs}*it was a sale of the lumber, and the obligation of the defendants was absolute, whether it was conditional or not.

It was expressly stipulated in the agreement that:

> “All said lumber so shipped, and the proceeds of all sales thereof by said-second party, shall be and remain the property of the said first party until the said lumber so sold shall be fully paid for by said second party to-said first party; and all sums of money received by said second party for the sales of said lumber by him shall be moneys had and received by said first party until a sufficient amount thereof shall have been paid to the said first party .by said second party to cancel the indebtedness arising upon the-sale of the lumber so sold.”

The referee has limited the recovery to the lumber sold by the-defendants previous to the fire, and has not charged the defendants with the lumber which was destroyed thereby. The payment of discounts upon the notes of the defendants was a valid charge against them, as they were given oh account of the lumber. The same is to be said respecting the payment for freight upon the-lumber shipped to the defendants. As, therefore, the referee has-only charged the defendants for the value of the lumber which they sold under the contract, and as it was provided therein that the-money received by the defendants upon such sales of lumber should be moneys had and received by the defendants for the plaintiffs, it is quite immaterial whether the sale was absolute or conditional,, because the money received upon the sales under the contract belonged to the plaintiffs.

The record presents no error, and the judgment should be affirmed, with costs.

BROWN, P. J., and PRATT, J., concur in the result.