Frick v. Hughes — 35 N.Y.S. 460

Majority

p. 460

(90 Hun, 16.)

FRICK et al. v. HUGHES et al.

(Supreme Court, General Term, Fifth Department.

October 16, 1895.)

Headnote

Trovbr and Conversion—Proof of Ownership.

In an action for conversion of lumber sold by defendants under execution against a lumber company, it appeared that plaintiffs manufactured the lumber from logs on which defendants had levied an attachment issued against the lumber company. Plaintiffs testified that they had a contract to saw a large number of logs for the lumber company, and that after sawing some of the logs, and before the attachment was levied, they purchased the balance, which they sawed into the lumber in question. The contract of sale was not produced on trial, though plaintiffs’ counsel stated that it was in his possession. Two days before the levy of the attachment the lumber company gave a bill of sale of the logs to a third person, who on the same day sold them to plaintiffs, the consideration for which, plaintiffs testified, was $5,000. Plaintiffs did not explain this transaction, or in any way account for their agreeing to pay for property which they claimed they owned before that time. Plaintiffs were present at the sale of the lumber under the execution, but did not protest, and only claimed compensation for sawing it. Held, that the evidence was not sufficient to sustain direction of the verdict for plaintiffs-

Appeal from circuit court/Cattaraugus county.

Action by Henry 0. Frick and Charles G-. Frick against William B. Hughes, as sheriff of Cattaraugus county, and Thomas R. Aldrich, as deputy sheriff, for conversion of lumber. From a judgment entered on a verdict directed by the court in favor of plaintiffs, defendants appeal. Reversed.

Argued before LEWIS, BRADLEY, and WARD, JJ.

Hudson Ansley and T. H. Dowd, for appellants.

William H. Henderson, for respondents.

This action was brought against the defendant Hughes, as sheriff of Cattaraugus county and Thomas R. Aldrich, deputy sheriff, for the conversion by them of some 200,000 feet of hemlock lumber. The defendants interposed an answer to the effect that on or about the 24th day of March, 1892, the First national Bank of Talamanca commenced an action in the supreme court of the state of New York against an incorporated company known as the Standard Lumber Company, and on that day obtained a warrant of attachment, which was delivered to the defendants, as sheriff and deputy sheriff of Cattaraugus county; that by virtue thereof they attached a quantity of logs ón the 26th day of said month, and that thereafter a judgment was recovered in said action against the lumber company, and an execution was issued, and that thereafter another action was commenced against said lumber company in favor of Anna Stickle and others as plaintiffs, and an attachment in said action was issued to the defendants, as sheriff and undersheriff, by virtue of which they attached the said logs, and thereafter a judgment was obtained in said action, and an execution was issued; that, intermediate the levying of the said attachments and the issuing of the executions, the plaintiffs, with knowl

p. 461

edge that the logs had been so attached, sawed them into lumber; that by virtue of the executions the defendants levied upon and sold said lumber as the property of said lumber company. At the close of the evidence a verdict was directed by the court for the plaintiffs for the conceded value of the lumber. Plaintiffs, in making their case, did not prove the source of their title to the lumber in question, but relied upon the presumption of ownership arising from their possession. Upon their cross-examination as witnesses, it was made to appear that in the early fall of 1891 they entered into a contract with a corporation known as the Alleghany Lumber Company to saw a large quantity of logs into lumber. The logs were lying, at the time of the making of said contract, in and along two streams of water in the town of Kedhouse, Cattaraugus county. One of said streams was known as “Quaker Run.” Upon this stream the plaintiffs’ sawmill was situated. The other stream was known as “Stony Brook,” which entered into Quaker Run a mile or so above plaintiffs’ mill. Plaintiffs entered upon the performance of their contract, and while so engaged the Standard Lumber Company was incorporated, and the assets and property of the Alleghany Lumber Company, including the contract with the plaintiffs, were transferred to the Standard Company. The plaintiffs thereafter continued the sawing of the logs for the Standard Company under the contract mentioned. The officers and stockholders of both companies appear to have been the same, and probably the only real change was in the name of the corporation.

The plaintiffs testified that, in the latter part of December, 1891, while they were engaged in sawing the logs, they purchased of the Standard Company what remained of the logs unsawed; that they were at the time frozen in the streams mentioned. Not much information was elicited upon the trial as to the terms of this purchase. The contract of sale was in writing. Plaintiff’s counsel announced upon the trial that he had it in his possession, but did not offer it in evidence. Neither did the defendants ask that it be produced. The defendants introduced evidence showing the commencement of the actions mentioned against the Standard Company, the issuing of the attachments, and the levy upon the logs, under the first attachment, on the 30th of April. On the 28th day of March the Standard Lumber Company made a written bill of sale of these logs to a firm by the name of Stewart & Co., and on the same day, and probably as a part of the same transaction, the plaintiffs purchased these identical logs of Stewart & Co., and agreed, so they testified, to pay therefor the sum of $5,000. No explanation was offered upon the trial, by the plaintiffs, of these transfers. It does not appear that they expressed any surprise when they were informed that the lumber company had assumed to dispose of property which the plaintiffs now claim they were the owners of at the time. Neither did they in any way account for their agreeing to pay to Stewart & Co. $5,000 for property which they claimed upon the trial they owned and had possession of. The

p. 462

plaintiffs' after the logs were attached by the defendants, continued to manufacture them into lumber, piling the lumber in separate piles in their mill yard. They pointed out these piles to the defendants as lumber manufactured from the logs which the defendants had attached. The plaintiffs were present at the sale of the lumber by the defendants, and did not in any manner protest against it They did make a claim for compensation for sawing the lumber. Whether the lumber sold under the executions was manufactured from the same logs that were attached by the defendants was left in some considerable doubt upon the trial. The plaintiff Henry C. Frick, however, did testify that the lumber sold by the defendants came from logs purchased by the plaintiffs of the Standard Lumber Company. We think there was sufficient evidence tending to identify the logs attached, and that the lumber sold was sawed from them, to make it a question which should have been submitted to the jury. And we think it was a question of so much doubt whether the plaintiffs ever had any title to the lumber in question,— whether it was not in fact the property of the defendant in the executions, the Standard Lumber Company,—as to make that, also, a question for the jury. The evidence relied upon by the plaintiffs to make their cause of action came from the plaintiffs themselves, who were interested witnesses. The circumstances attending these alleged transfers tended to throw considerable doubt as to their being bona fide sales. It is altogether improbable that the plaintiffs would have recognized them, and consented to pay Stewart & Co. for the logs, if they in fact at the time had any title to them. While the defendants were somewhat unfortunate in getting their defense before the court, we are of the opinion that there were questions of fact which should have been submitted to the jury. The judgment should be reversed, and a new trial granted; costs to abide the event. All concur.