Phillips v. McNab — 30 N.Y. St. Rep. 853

Majority

p. 853

Mary Phillips, Resp’t, v. James B. McNab, App’lt.

(New York Common Pleas,

General Term,

Filed April 7, 1890.)

Headnote

1. Conversion—Temporary possession sufficient to authorize action for.

Absolute, unqualified ownership is not necessary in order to authorize a person entitled to the possession of property to sue for its conversion. A temporary possession for a particular purpose is sufficient.

3. Same—Tender.

Defendant obtained certain furniture from plaintiff under a promise to return it after making repairs, and thereafter refused to deliver it on demand, and refused to put it in any better order. Held, that plaintiff was not bound, as a condition precedent to making the demand, to tender the money which would have been due if defendant had performed his agreement.

3. Same—Witness—Evidence.

Plaintiff testified that she had attended many sales of second-hand furniture, and had bought and sold furniture at such sales. Held, sufficient to qualify her to express an opinion on the value of the furniture, although she had never been regularly in the furniture business

Appeal from judgment of the general term of the city court of New York, affirming judgment in favor of plaintiff.

Plaintiff, as agent for her brother, purchased of defendant a ¡suite of parlor furniture for $280, on the installment plan. After paying $250 she refused to pay more, claiming to have discovered latent defects therein; an action for the balance was discontinued, •and defendant wrote a letter offering to put the furniture in good •order on the payment of $25, and promising to repair it immediately, and let plaintiff know when it was ready for delivery. It was accordingly delivered to defendant but never returned. The •complaint alleged these facts, and a refusal by defendant to return

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the furniture, and demanded judgment for the amount paid, to wit, $250.

On the trial plaintiff was required to elect whether she would seek to recover for conversion or breach of contract, and elected to maintain the action for conversion.

Plaintiff testified that she was never informed by defendant that the furniture was ready for delivery, and that she had demanded its delivery. Defendant testified that he repaired it and notified plaintiff, but that she refused to pay the $25 as agreed,, and that he, therefore, declined to deliver it

The case was submitted to the jury, which found a verdict for plaintiff.

William J. Me Orea, forapp’lt; Arthur H. Ely, for resp’t.

Although on the claim of conversion there is much immaterial matter in the complaint, yet it contains sufficient to make out a case of trover; and it was upon the morion of appellant’s counsel that plaintiff, under order of the court, elected to proceed upon such theory of action.

Absolute, unqualified ownership is not necessary in order to authorize a person entitled to the possession of property to sue for its conversion. A person entitled to the temporary possession of chattels for a particular purpose may maintain such an action. Addison on Torts, marginal page 524, and cases cited in note. In the case at bar there is probably enough evidence to support a finding that all title or interest of plaintiff’s brother in the suite of furniture had been transferred to her before the commencement of this action. It certainly appears that, as between her and defendant, plaintiff was entitled to the exclusive possession and control thereof. Defendant acknowledges and ratifies plaintiff’s right to the custody and disposal of the same by his letter of July 21, 1886, in pursuance of which he received the property. Whatever may have been the former ownership of the furniture, or the former relations of the parties, the present cause of action arises because defendant obtained the furniture from plaintiff under a promise to return it to her after making repairs, and that he now refuses so to return it, though demand has been made.

There is sufficient evidence of a demand, and the jury evidently believed plaintiff’s testimony, and by their verdict established that the furniture was not put into good condition according to the contract. Therefore, after waiting a reasonable time for such repairs to be made, plaintiff was not bound, as a condition precedent to making a demand, to tender the money which would have been due if defendant had performed his agreement. Indeed, according to plaintiff’s evidence, which the jury accepted as true, defendant positively refused to “put it in any better order than it was then in,” which she avers was anything but “ good order.

Nor was it error to admit plaintiff’s own testimony as to the value of second-hand furniture. She alleged that she had attended many sales of such articles, and had herself bought' and sold furniture at second-hand sales. This was sufficient to qual

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ify her to express an opinion on this question, although she had never been regularly in the furniture business.

The judgment should be affirmed, with costs.

Daly and Bischoff, JJ., concur.