Madison v. Gross — 54 A.D. 129

Majority

p. 129

Margaret T. Madison, Respondent, v. August Gross and Aaron C. Horn, Appellants.

Headnote

Conversión of chattels — when a demand and a refusal to deliver must he shown.

A person, who has lawfully obtained possession of chattels belonging to another, cannot be held liable for their conversion until they.have been demanded of him by the owner, or the person entitled to their possession, and he has refused to deliver them..

Appeal by the defendants, August Gross and another, fr.om a judgment of the Municipal Court of the city of New York, borough of Brooklyn, second district, in favor of the plaintiff, entered in the ■office of the clerk of said court on the 21st day of June, 1900, in an ■action for the conversion of certain chattels.

Herman M. Schaap, for the appellants.

Carl J. Heyser, for the respondent.

It appears from the evidence that Gross & Horn, prior to the ■commencement of this action, were the selling agents of the plaintiff ■for her special bleach or peroxide,, under a written agreement; that the peroxide was shipped in carboys, and that these carboys were valued by agreement at one dollar and fifty cents each. The evidence does not fully disclose the agreement, but there is enough to indicate that the peroxide, together with the carboys, was shipped to the customers indicated by Gross & Horn, the same being charged to the defendants, who were given credit at the rate of one dollar and fifty cents for each returned carboy. Prior to January 1,1900, the plaintiff had delivered from time to time, upon the order of the defendants, quantities of peroxide to one Teschmacher, and these shipments were all charged to Gross & Horn. There appears to haye.been some difficulty between the plaintiff and these defendants, and an action was commenced against the defendants, evidently involving a, settlement of their accounts. At least the agency was terminated, and_ from the 3d day of January, 1900, the plaintiff made shipments direct to Teschmacher. It appears from the evi

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den ce that these shipments, between the third of January and the fifth of February, had aggregated one hundred and sixteen carbcfys,. and that only ninety of these had been returned to the plaintiff, so-that on the 5th of February, 1900', Teschmacher had in his possession twenty-six carboys, which had come originally from the plaintiff, but whether they belonged to the plaintiff or whether they were the property of Teschmacher, subject to Ms right to return them and receive a credit for -their -value, does not appear. Mr. Rentrop,, Teschmacher’s office manager, testified that he delivered twenty-six carboys to Gross & Horn shortly before the commencement of'this-.action, in accordance with their order, as follows: “ Please deliver-to our carman empty carboys belonging to us, and, oblige Tours,. &c.,. Gross & Horn, per A. Y.; ” that these twenty-six carboys were-delivered to Teschmacher in December, through Gross & Horn, and that no carboys shipped Teschmacher in January, February and March, 1900, and up to April twelfth, the date of the commencement. of this action, were given by them to Gross & Horn. The same witness also testified, in behalf of the plaintiff, that “ as far as 1 know they were Gross & Horn’s carboys. Mr. Hazen (plaintiff’s, manager), stated and-wrote us letters'whenever Gross & Horn asked us for these carboys we should return them.”

The defendants, who had put in a general denial to the claim of the plaintiff that the defendants “ wrongfully and unlawfully took and detained twenty-five (25) carboys, the property of the plaintiff,,, -and converted the same to their own use; said carboys being of the-agreed price and fair and reasonable value of $37.-50,” did not offer-any evidence, but relied upon their motion to dismiss, upon the ground “that by their own evidence the carboys shipped, to us-belonged to us, and on the further ground that they have not shown possession.” It does not appear from the evidence, so far as we are-able to discover, that any carboys belonging to -the plaintiff came into the possession • of the defendants. Gross & .Horn- claimed to own the- carboys delivered to them "by Teschmacher, and the latter’s-manager, the plaintiff’s own witness, testifies that so far as he knows-they were • the property of the defendants. The only testimony, as. ■to the plaintiff’s property in the carboVsfis that of the -plaintiff’s-manager to the effect -that he saw some carboys being delivered to. the defendants, but he is not sure that they were the carboys in.

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suit, and his testimony as to “ our goods being taken off there,” “ our carboys,” is at best vague, and it seems from the evidence not improbable that the carboys were actually sold to the defendants and charged in their account, which would make the theory of conversion wholly untenable. The evidence shows that there was an agreement between the plaintiff and defendants as to the price of these carboys; that they were to be valued at one dollar and fifty cents apiece between them, and the idea of an agreement as to the price of goods seems at present inconsistent with the theory of conversion. The carboys appear to have been lawfully in possession of the defendants, and when the chattels of the plaintiff (assuming these to have been the property of the plaintiff, and the evidence does not establish this) have not been wrongfully taken possession of by the defendant, but have come into his hands in a lawful manner, he cannot be made responsible for a conversion of them until they have been demanded of him by the owner, or the person entitled to. possession of them, and he has refused to deliver them up. (Castle v. Corn Exchange Bank, 148 N. Y. 122 , 126, and authorities there cited.) The only evidence of a demand in the case attempted to be made by the plaintiff was the answer of Mr. Hazen to the question : “ Did you demand the return of these carboys % ” A. “ Yes, there was a demand made for them.” The meaning of this reply is not very clear, and does not indicate with any certainty either by or upon whom the demand was made. So far as we know, from the evidence, the carboys belonged to Gross & Horn ; they were carboys which had been delivered to Teschmacher on the order of Gross & Horn, the selling agents of the plaintiff, under a written agreement, and were quite likely involved in the controversy which appears to-have been pending between them in another action at the time. It seems to us that any proper understanding' of this controversy is quite difficult, if not impossible, without the aid of the written agreement between the parties, which does not appear in the evidence.

■ The judgment appealed from should be reversed. •

All concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

Cases cited

Castle v. Corn Exchange Bank 148 N. Y. 122 N.Y. 1895-12-19 at 126 p. 131