Remington Arms Union Metallic Cartridge Co. v. Atkinson

Headnote

Conversion — settlement of action by payment of sum including price of certain merchandise — when refusal to deliver merchandise constitutes a conversion.

Remington Arms Union Metallic Cartridge Co. v. Atkinson, 191 App. Div. 902 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 26, 1920, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was for conversion. The plaintiff claimed that, on or about March 23, 1917, it paid to the defendant the sum of $8,500 in settlement of an action for damages for breach of contract which the defendant herein had brought against the plaintiff, and that this amount included the said sum of $3,927.09 as the price of certain metals which were to have been used in the performance of the contract and that, as part of the settlement, it

became entitled to have the said metals, which are specified in the complaint, delivered to it, and that refusal of the defendant to deliver them constituted a conversion. The defendant claimed that the terms of settlement of the earlier action did not include the delivery of the metals to the plaintiff, but that the action was settled on the basis of his receiving 18,500 in cash and also keeping the metals, and also that the general release given by the plaintiff at the time of the settlement was a bar to its claim for the metals.