Dunlop v. Whitlock — 1 Ant. N.P. Cas. 274

Majority

p. 274

Dunlop against Whitlock et al.

OCTOBER SITTINGS, 1825.

Coram Edwards, J.

Headnote

Where there is evidence tending to show that an agent has not sold goods entrusted to him, but has converted them to his own use, a bill of particulars, treating them as goods sold, is prima fade correct. And it is a question for the jury whether the agent has so converted them. And if they find that fact affirmatively, they will be directed that the plaintiff had the right, at his election, to consider him a purchaser.

Assumpsit. The declaration contained counts for goods sold and delivered, together with the common money counts, for money had and received, money paid, &c.

Plea, non-assumpsit.

In the progress of the suit, the defendant, according to the practice of the court, had demanded a bill of the particulars of the plaintiff’s claim. This was accordingly rendered by the plaintiff, entitled as follows:

“Plaintiff’s bill of particulars, of ale sold to the defendants, for which this suit is brought.” Then followed the dates, quantities and prices.

It appeared, in evidence, that the goods mentioned in the bill of particulars had been delivered to the defendant to sell, as agent for the plaintiff; but "it also appeared doubtful whether he had sold them or converted them to his own use.

Anthon,

for defendant, insisted that the plaintiff, by his bill of particulars, had confined himself 'to the count for

p. 275

goods sold and delivered, and, as there had been no sale, there could be no recovery. He cited Holland v. Hopkins, 3 Esp. 168, and the same case, 2 Bos. & Pul. 243.^[1]

Slosson,

contra.

The rule, as laid down in the case cited by the defendant’s counsel, is certainly correct. There the proof was full that he had sold the goods, and the money consequently in his hands, was for the use of the plaintiff, and could only be recovered under that count. But, here, there is no certain evidence of any sale by the defendants. There is, on the contrary, room to infer that they have converted these goods to their own use. I shall leave that fact to the jury, and shall rule that if the defendants, instead of selling the goods, have converted them to their own use, they have become purchasers at the election of the plaintiff, and consequently that they are entitled to recover on the count for goods sold.

The case went to the jury under this charge, and they found for the plaintiff.

Van Vechten and Slosson, for plaintiff.

Anthon, for defendants.