Opinion
December 30, 1908.
Samuel W. Phillips, for the appellant.
David Hirschfield, for the respondent.
The Lien Law provides that contracts for the conditional sale of goods "shall be void as against subsequent purchasers, pledgees or mortgagees in good faith", unless the same has been filed (§ 112 et seq.). The statute contemplates the making and filing of an agreement for each sale, and not an omnibus agreement in advance for all future sales. This becomes the necessary construction of the statute in view of the fact that it in effect treats and reduces the interest of the vendor to a lien like that under a chattel mortgage, which needs to be foreclosed as under a chattel mortgage by a sale on retaking the property, and the rule of law is that chattels not in esse cannot be subjected to a lien as against purchasers and judgment creditors (Jones on Chat. Mor. [5th ed.] § 138).
But the statute does not apply in terms to judgment creditors, but only to "subsequent purchasers, pledgees or mortgagees", although it is assumed by both sides that it does apply to judgment creditors. Even if it did, the plaintiff would have no case, for the agreement, preamble and all, shows the intention to be that the purchaser may use the flour to bake as he needs it from time to time on giving notice to the seller of his "desire" to use it, and paying for it "immediately, at his earliest convenience". The preamble is in effect that the purchaser has no money to purchase flour to bake and therefore the seller is to help him to flour to bake. If he, too, was not to let him have any to bake until it was paid for in advance, he would certainly not be helping him to get it without money. A chattel mortgage like that would be fraudulent on its face, and the rule is the same in respect of a contract of conditional sale on the same principle (Jones on Chat. Mor. [5th ed.] § 401, et seq.). The cases are collected up to the present time by the learned author.
The judgment should be reversed.
WOODWARD, JENKS, HOOKER and RICH, JJ., concurred.
Judgment and order of the Municipal Court reversed and new trial ordered, costs to abide the event.