in or title to it. Statement of case. 398; Smith v. People, 53 N. Y. 113; Bassett v. Spofford, 45 id. 391; Weyman v. People, 6 N. Y. Supr. Ct. 398; 62 N. Y. 623; Justices, etc. v. People, ex rel. Henderson, 90 id. 14; Barnard v. Campbell, 58 id. 76; 24 Hun, 658.) The cotton belongs to the plaintiffs. They have never parted with their property (Saltus v. Everett, 20 Wend. 275; Covill v. Hill, 4 Denio, 327; Ballard v. Burgett, 40 N. Y. 322-4; Barnard v. Campbell, 55 id. 463; F. & M. N. B'k v. Logan, 74 id. 569; Cary v. Hotaling, 1 Hill, 313; Spraight v. Hawley, 39 N. Y. 441; McGoldrich v. Willets, 52 id. 617; Benjamin on Sales [2d Am. ed.], § 433; Cauldwell v. Bartlett, 3 Duer, 340; Keyser v. Harbeck, id. 373, 383; Craig v. Marsh, 2 Daly, 61; 20 Hun, 255; Comer v. Cunningham, 77 N. Y. 399; McNeil v. Tenth Nat. B'k, 46 id. 330; Barker v. Dinsmore, 72 Penn. St. 427; In re The Idaho, 3 Otto, 583; Cundy v. Lindsay, L. T. [N. S.] 573; Higgins v. Burton, 5 Weekly Rep. 683; Hardman v. Booth, 7 L. T. [N. S.] 638; Fowler v. Hollins, L. R., 7 Q. B. 616.) An estoppel can arise only where the "owner has, by his own direct voluntary act, conferred upon the person from whom the bona fide vendee derives title, the apparent right of property as owner, or of disposal, as an agent." (Saltus v. Everett, 20 Wend. 278; Marine B'k v. Fiske, 71 N. Y. 358; F. & M. N. B'k v. Logan, 74 id. 580– 586.) The fact that Cutter & Co. had warehouse receipts (though wrongly issued to Price & Co. by Richards) which were transferred to Ralli Brothers, was not conclusive evidence of title in Ralli Brothers. (First Nat. B'k of Toledo v. Shaw, 61 N. Y. 297; Barnard v. Campbell, 55 id. 462; Kinsey v. Leggett, 71 id. 395; Hazard v. Fiske, 18 Hun, 282.) The "Factors Act" does not apply to this case. (2 R. S., chap. 4, title 5; Kinsey v. Leggett, 71 N. Y. 395; Hazard v. Fiske, 18 Hun, 282; First Nat. B'k of Toledo v. Shaw, 61 N. Y. 299.) The so-called guaranty by Cutter & Co. does not affect the rights of the parties to this transaction or distinguish the case at bar from that of Collins v. Ralli et al. (20 Hun, 246, 251). (2 R. S., chap. 7, title 2, § 2; 1 Pars. on Cont. 493; Joslyn v. Opinion of the Court, per Danforth, J. Don, 19 Hun, 497; McGregor v. Managers, etc., 16 E. L. & E. 180; Rex v. Jamison, 26 L. J. [N. S.] Mag. Cases, 146.) DANFORTH, J. The defendant acquired all the right which Cutter & Co. had in the cotton, or which by any act of the real owner they appeared to have. His claim can go no further. One can only transfer that which he himself has, and the real owner is estopped from setting up his own right, only so far as he has allowed another to have the appearance of ownership. In Collins v. Ralli (20 Hun, 246) the referee and the General Term thought Cutter & Co. obtained possession of the cotton then in question by larceny, and upon that ground held that the defendants, who claimed under Cutter & Co., although themselves innocent purchasers, acquired no title to it against the true owner. Judgment was, therefore, rendered in his favor, and in this we concurred (85 N. Y. 637). We were satisfied with the very able opinion which led the Supreme Court to that result. The importance of the case and the argument of the learned counsel for the appellant have led to a re-examination of the question involved, but so far as it goes we see no reason to depart from that decision. Nor do we find that it conflicts at all with our judgment in Zink v. People (77 N. Y. 114; 33 Am. Rep. 589). There the prisoner had not only lawful possession of the property in question, but that possession was accompanied by evidence of title of the most formal kind, and if regarded only as an agent, he was at least intrusted with the goods for sale, with and not against the will of the owner. None of these facts appear in Collins v. Ralli. It is said, however, in behalf of the appellant that the case now before us is not the same as the Collins Case. It is clearly not the same in words, and this is conceded in the opinion of the court below and by the learned counsel for the respondents. A part of the bought and sold note in this case are the words: "Payment guaranteed by H. M. Cutter & Co. Bill to H. M. Cutter & Co." Nothing of the sort was in Collins v. Ralli, and if there is any difference in the two cases it is created by these words. The appellant claims nothing else. The ques Opinion of the Court, per DANFORTH, J. tion then turns upon them. The first clause must no doubt be taken to mean that Cutter & Co. have guaranteed payment by their principal, and as this is one of the terms of the contract, the plaintiffs may be held to have relied upon it. The further contention of the appellant would have great force if the second clause permitted the interpretation which the appellant's counsel claims for it. He says, "if Cutter was a mere custodian, why make the bill to him and thus furnish him with the title to, as well as the physical possession of, the cotton." If this assumed fact existed, the possession and document of title would correspond and there would be no difficulty in saying that the loss through Cutter & Co's fraud should fall upon him who allowed them to have the appearance of owners of the cotton. But I find no reason for supposing that the words "Bill to H. M. Cutter & Co." mean that the cotton had been billed to them. It is at most a memorandum, and, although found in the bought and sold notes and so evidence of the contract, is to be taken in connection with the other parts of the note, and there we find it plainly stated that the sale is "to the Freeman Manufacturing Co." It would, therefore, seem that the words. amounted merely to a memorandum, and taken with the rest of the contract to mean only that the bill when made out to the purchasers, i. e. to the Freeman Manufacturing Co., was to be sent to H. M. Cutter & Co., through whom they were said to act. But no bill appears to have been sent or made out to any one, and there is nothing in the words themselves to require a different holding from that of the referee, viz.: that "no bill of sale or other muniment of title of any kind was delivered to" them (Cutter & Co.), nor any document whatever except the bought notes. These corresponded with the sold notes, and they described the contract of sale as one with the manufacturing company. The case cannot be treated as one where a party has by any means obtained "title to goods" as well as the possession with the assent of the owner. It may be, as the appellant insists, that the owner was influenced in the sale to some extent by the financial responsibility of the assumed brokers, but the professed guaranty was only an Statement of case. other element of fraud, and, however it might have weighed with the referee, cannot affect the question here. But assuming the contract to have been an authorized con- It was one of the terms of sale and The judgment appealed from should be affirmed. All concur, except RUGER, Ch. J., and RAPALLO, J. not voting. Judgment affirmed. JOHN J. MARVIN, Appellant, v. JAMES I. BROOKS, Impleaded etc., Respondent. Where an agent has been intrusted with his principal's money, to be expended for a specific purpose, the former may be required to account in equity; and upon such an accounting the burden is upon him, of showing that his trust duties have been performed, and the manner of their performance. Defendant B. purchased certain securities under an agreement between him and plaintiff that the purchase should be made by B. on joint 94 71 109 431 109 433 94 71 137 254 94 71 141 106 94 71 163 157 94 71 168 2165 94 71 h170 1129 Statement of case. account, each to furnish half of the purchase-money. Plaintiff placed in the hands of B. sufficient funds to pay for his half. At the time of the agreement the amount of the securities and the price were not known In an action for an accounting, held, that B. became the agent of plaintiff as to the half interest of the latter, and a quasi trustee of the money placed in his hands, and of the property purchased; that the plaintiff had the right to call B. to account in equity, and the burden was upon the latter of showing both the price paid and what property was purchased. (Argued October 19, 1883; decided November 20, 1883.) APPEAL from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made December 23, 1881, which affirmed a judgment in favor of defendant, entered upon the report of a referee. This was an action for an accounting. The complaint alleged in substance that an agreement was made in September, 1878, between the plaintiff and defendant Brooks for a joint purchase of a lot of securities then held by one Potter, the executor of Ward; that the defendant Brooks had the sole management of the purchase; that the plaintiff, in the first instance, advanced nearly the whole of the purchasemoney; that the plaintiff has no knowledge of the precise facts as to the property purchased, or as to the amount of the purchase-money; that the plaintiff has received a certain portion of the purchased property, but whether his full half he does not know; that he has been reimbursed part of his advances, but whether the full half he does not know. He, therefore, asked an accounting, with a judgment for such an amount of money and such proportion of the securities as may equalize his interests with those of the defendants, defendant Mifflin having an interest in Brooks' half, as such interests may be adjusted on the accounting. The referee found the following facts: One Potter, as executor of the will of one Ward, deceased, was the owner of 3,578 shares of the capital stock of a corporation known as the Silver Islet Consolidated Mining and Lands Company; $22,750 in bonds and scrip of the same company, at its par value; $3,000 in bonds of the Silver Islet Mining Company of Lake Superior, |