Argued March 13, 1907
Decided April 2, 1907
Isadore L. Pascal for appellant.
William Travers Jerome, District Attorney ( E. Crosby Kindleberger of counsel), for respondent.
The Penal Code provides that "A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, either
"1. Takes from the possession of the true owner, * * *; or,
"2. Having in his possession, custody, or control, as a bailee, servant, attorney, * * * or as a person authorized by agreement, * * * to hold or take such possession, custody, or control, any money, property, * * * appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof; steals such property and is guilty of larceny." (Penal Code, § 528.) If the property thus stolen is worth more than twenty-five dollars but not more than five hundred dollars the crime is grand larceny in the second degree. (Id. § 531.)
The question presented by this appeal is whether there was sufficient evidence to warrant the jury in convicting the defendant of the crime thus defined. In civil cases the rule is that a preponderance of evidence is sufficient to establish the fact at issue, but in criminal cases the law requires sufficient evidence to establish the fact of guilt beyond a reasonable doubt. "The presence of some proof is not sufficient to warrant the submission of a criminal case to the jury; and whenever a criminal charge is submitted to the jury, against the objection and exception of the defendant, upon proof which falls below the standard of rebutting the presumption of innocence and of proving guilt beyond a reasonable doubt, required by the statute (Code Cr. Pro. § 389) to warrant a conviction, a question of law is presented." ( People v. Ledwon, 153 N.Y. 10, 18; People v. Owens, 148 N.Y. 648, 651.) There was no evidence to warrant the jury in convicting the defendant of an intent to steal the ring when he first obtained possession thereof and the case was not tried on that theory. As he was in lawful possession of the ring until the demand was made, at least, the question is whether there was enough evidence to prove that he then intended to deprive the true owner of his property or to appropriate the same to his own use.
The rights of Behrens and the defendant are defined by the consignment receipt and the deposit agreement, which, as they were executed at the same time, between the same persons and with reference to the same subject, must be read together as one instrument. They were drawn by Behrens himself, who filled out a printed blank used by him in his business, and hence any ambiguity therein must be resolved against the one who created it. ( Kratzenstein v. Western Assur. Co., 116 N.Y. 54, 59.) What did the parties mean by their contract? "The answer to this question is not to be found in any name which the parties may have given to the instrument, and not alone in any particular provisions it contains, disconnected from all others, but in the ruling intention of the parties, gathered from all the language used. It is the legal effect of the whole which is to be sought for. The form of the instrument is of little account." ( Heryford v. Davis, 102 U.S. 235, 244.)
When the two papers are read together they form a conditional contract for the sale of personal property, or what is commonly called, but not with strict accuracy, a conditional sale. (L. 1897, ch. 418, § 110.) According to its terms, the seller not only retained title to the property agreed to be sold, but also acquired title to all sums paid, while the purchaser promised to pay a certain sum down and the balance in installments. Although the word "deposit" is used, it means payment, because it was agreed that each deposit "when made shall be and become the absolute property of said second party." Thus the title to the sums "deposited" passed the same as in the case of money deposited in a bank, but not with the same rights to the so-called depositor, for no debt was created, as it was a partial payment for the ring. The ring was not to belong to the defendant until the purchase price was wholly paid, but still he had a present interest, because he was to become the owner on payment of the balance, and the value of his interest increased with each installment paid. There was no express provision as to possession of the ring in the meantime, but as it was delivered to the defendant when the papers were executed he had the right to retain possession until default in payment. The stipulation that conditions not expressed shall not be considered a part of the agreement does not control the ordinary rules of construction, or the obvious intention of the parties. ( Hervey v. Rhode Island Locomotive Works, 93 U.S. 664, 672.)
While the seller had the right to demand possession, he could not exercise that right, as we read the agreement, until the defendant failed to pay some installment. The stipulations relating to demand and default, when read in the light of actual delivery of the ring to the defendant, make the former dependent on the latter. In case of default in making any payment the seller had the right to take advantage of it by demanding the ring, or at his election, to accommodate the defendant by waiting upon his convenience for a longer or shorter period. When the default occurred and the seller made the demand, he thereby brought into action the last clause of the agreement and the demand was not complete until that clause was complied with. After the default he had a right to take possession of the ring and to keep all sums paid, but only on the condition that he should deliver to the defendant "articles, as near as may be, of the same nature, manufacture and style as" the ring and "reasonably worth the sums" paid and upon delivery thereof the agreement was to be regarded as "fulfilled and satisfied." In order to terminate the contract by demanding the ring the seller was obliged to tender in goods the equivalent of the payments made. He could not keep all benefits received, take the ring also and leave the defendant with nothing but a right of action to get that which the seller had agreed to give. It was not for the purchaser to demand the articles to be given for payments made, but for the seller to offer them when he demanded the ring. The right to make the demand and the obligation to tender restitution or its equivalent in goods were concurrent, and the former was not complete until the latter was performed. As an effective demand would change the situation of the parties it was the duty of the one who wished to bring about that change to do what he had agreed in order to attain that result. A demand when properly made would not rescind the contract, but would "fulfill and satisfy" it as was expressly provided. Any other construction would authorize the purchaser not only to retake the property and keep what had been paid, but also to sue the purchaser for the balance unpaid.
The seller made a demand, but no tender, and hence the relations of the parties remained the same as before. The defendant had the right to retain possession of the ring until the check and money were restored or their equivalent in goods delivered. One-sided as the agreement was from any point of view the seller could not have everything and the purchaser nothing. The latter was entitled to but little at the most, but he could insist upon such rights as he had without being sent to prison for it. He stood upon his rights and the law sustains him in so doing. There was no felonious intent in keeping possession of the ring under the circumstances, and hence he was not guilty of any crime. There was no evidence to warrant the verdict of the jury. The judgment of conviction should be reversed and the defendant discharged.
CULLEN, Ch. J., GRAY, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.
Judgment reversed, etc.