American Medicine Co. v. Kessler

Headnote

This was an action for conversion.

Plaintiff’s evidence was to the effect, that in February, 1871, plaintiff was the owner of 3,524 bottles of medicine called “ Zoeger’s Remedy for Dyspepsia and Piles,” which were contained in wooden and paper boxes, stored in the basement of No. 1378 Broadway, New York, which building was occupied by Zoeger. Plaintiff’s agent sold to Zoeger 1,000 bottles, in paper boxes. In the month aforesaid a fire occurred in the building; plaintiff’s agent visited the place after the

fire, and testified that he found 2,634 bottles remaining uninjured by the fire, except that some of the boxes were scorched. Soon after the fire the medicine was removed. In April, thereafter, plaintiff’s president called at defendant’s place of business and found a large quantity of boxes similar in appearance to those in which the medicine was kept, and, upon inquiry, defendant stated that he procured it at No. 1378 Broadway; that he removed all there was there, which he claimed to hold by virtue of a chattel mortgage from Zoegler. Defendant refused to deliver it on demand.

Upon this evidence plaintiff was nonsuited, upon the ground that he had failed to establish a conversion of the identical property. Held, error; that the evidence was sufficient to establish that it was the same property, and at least, the question should have been submitted to the jury.