Legal Opinion

Foster v. . Pettibone

New York Court of Appeals

Decided December 5, 1852PublishedCited by 14 opinions

Appeal from the general term of the Supreme Court, in the seventh district, where a judgment entered upon the report of a referee had been affirmed. This was an action of trespass against the sheriff of Cayuga county, to recover damages for the taking of 193 barrels of flour, by virtue of a writ of replevin sued out by John G. Brown.

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Appeal from the general term of the Supreme Court, in the seventh district, where a judgment entered upon the report of a referee had been affirmed. This was an action of trespass against the sheriff of Cayuga county, to recover damages for the taking of 193 barrels of flour, by virtue of a writ of replevin sued out by John G. Brown. The flour was replevied in the hands of David S. Baker, with whom it had been stored. *On the 25th October 1844, the following con- ^ tract was entered into between the plaintiff and *- the said John G. Brown: “ John G. Brown. agrees to deliver to William C.…

1Opinion of the CourtRuggles, C. J.

This controversy arises upon a contract in relation to wheat, between a merchant and 35’1 miller; and it is one *of the many cases concerning the same subject-matter, in which it is somewhat difficult to determine, whether the parties intended to make a contract of sale or of bailment.

The distinction between a bailment and a sale is correctly laid down by Bronson, chief judge, in Mallory v. Willis (4 N. Y. 85), in these words: “When the identical thing delivered, although in an altered form, is to be restored, the contract is one of bailment, and the title to the property is not changed; but…

2Cases cited4 opinions

  1. Bullis v. . MontgomeryNew York Court of Appeals · 1872
  2. Foster v. PettiboneNew York Supreme Court · 1855
  3. Otis v. . WilliamsNew York Court of Appeals · 1877
  4. New-York Central Insurance v. National Protection InsuranceNew York Court of Appeals · 1856

3Cited by14 opinions

  1. Matter of Mounting Finishing Co. v. McGoldrickNew York Court of Appeals · 1945
  2. Sattler v. . HallockNew York Court of Appeals · 1899
  3. Austin v. SeligmanU.S. Circuit Court for the District of Southern New York · 1883
  4. Aronette Manufacturing Co. v. Capitol Piece Dye Works, Inc.New York Court of Appeals · 1959
  5. DeSimon v. Ogden AssociatesAppellate Division of the Supreme Court of the State of New York · 1982

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