Wolston v. Ham — 10 N.Y. St. Rep. 123

Majority

p. 123

Charles H. Wolston, App'lt, v. Philip W. Ham, Resp't.

(Supreme Court, General Term, Third Department,

Filed July, 1887.)

Headnote

1. Conversion—Proof of possession, with knowledge.

The plaintiff, by Ms agent, had negotiated with defendant for the purchase of 175 bags of flour. The plaintiff caused the bags to be delivered at defendant’s mill to be filled with flour. The defendant was not present when the bags were delivered, but a few days later at the mill he pointed out the bags to plaintiff’s agent and told him he had received them. For some reason the sale of the flour was not consummated. Held, The evidence was ample to show that the defendant received the bags knowing that the plaintiffs expected him to fill them with flour.

3. Same—Demand—When well made.

The plaintiff’s agent presented a written order of plaintiff to the defendant, who read it and then refused to deliver the bags unless he was paid §5 for storage, and returned the order to the agent. The agent four weeks later again presented the written order and made an oral demand for the bags Held, The demand was well made and well understood.

-3. Same—Refusal to deliver—What amounts to.

When the agent presented the order the second time, the defendant said he should not deliver the bags to him; that he would like to have the plaintiff come there and he would know whom to pitch upon- that he did did not keep his mill locked to hinder any one from getting them; they

p. 124

had stood there in his way for two years; he wanted $5 for storage; that, he had not any thing to do with the bags, and was not going to put himself to any trouble. The defendant did not tell the agent where the bags were when the latter said he did not know where they were. On the trial there was no claim of any lien on the bags for storage. Held, That the language and conduct of the defendant were intended and did amouni to a refusal to deliver the bags.

Appeal from a judgment of the Schoharie county court reversing a judgment in a justice’s court in favor of the plaintiff.

The action was for damages for the alleged conversion of 175 flour bags.

L. W. and M. D. Baxter, for app’lt; Albert Baker, for resp’t.

The learned county judge reversed the judgment of the justice’s court in favor of the plaintiff. This reversal was based upon the grounds that the proof, of the possession of. plaintiff’s bags by the defendant, the demand of the bags by the plaintiff of the defendant, and the refusal by the defendant to deliver the bags upon demand, were insufficient.

We think the evidence upon all these questions of fact, was ample to sustain the judgment in favor of the plaintiff:

First. As to possession. The plaintiff by his agent had negotiated with defendant for the purchase of 175 bags of flour. The plaintiff caused the bags to be delivered at defendant’s mill to be filled with flour. The defendant was not present when the bags were delivered, but a few days later at the mill he pointed out the bags to plaintiff’s agent and told him that he had received them. For some reason the sale of the flour was not consummated, but we think the evidence was ample to show that the defendant received the bags, knowing that the plaintiff expected him to fill them with flour.

Second. The plaintiff gave to his agent a written order upon the defendant asking him to deliver the bags to the agent. The agent presented the written order to defendant; the defendant read it. The defendant then refused to deliver the bags unless he was paid five dollars for storage, and returned the written order to the agent. The agent, four weeks later, again presented the written order and made an oral demand for the bags. We think the demand was well made and well understood.

Third. The refusal. When the agent presented the written order the second time the defendant said he should not deliver the bags to him; that he would like to have the plaintiff come there and he would know whom to pitch upon, that he did not keep his mill locked to hinder any one from getting them; they had stood there in his way

p. 125

for two years; ne wanted five dollars for storage; that he had not anything to do with the bags and was not going to put himself to any trouble. The agent answered he should not try to get the bags as he did not know where they were. He testified that the defendant did not tell him where they were. The defendant made no claim upon the trial to any lien upon the bags, and makes none here.

'We think the justice was justified in holding that the language and conduct of the defendant were intended to amount and did amount to a refusal to deliver the bags.

He did not question the agent’s authority, but he did interpose objections and made such conditions and evasions and omissions to comply with the demand as resulted, as lie intended they should result, in such a refusal as would suffice to prevent the plaintiff from obtaining his bags. He should take no advantage of his indirection when he meant his indirection to be as effective as ■ an unqualified and direct refusal would be.

The judgment of the county court should be reversed, with costs in this court and in the county court, and that of the justice of the peace affirmed.

Learned, P. J., and Bocees, J., concur.