#### Jacob Stahl et al., Appellants, *v.*Herman Dohrman, Respondent.

(Supreme Court, Appellate Term,

May, 1898.)

Conversion — Possession gained by fraud — Demand.

The proof in an action for a conversion tended to show that the defendant had been the manager of a liquor and cigar store; that during this period his principal had bought goods of the plaintiffs which were billed and delivered to the principal’s .store, but were paid for by the checks of the defendant, whom the plaintiffs knew to be the manager; that after the defendant ha)d bought out the principal he, without disclosing the change in ownership, bought the goods in question, which were billed to the principal, delivered at the same store but were never paid for by any one. One of the plaintiffs testified that they would not have sold goods to the .defendant personally.

Held, that the goods had never been sold to any one; that the defendant had obtained them by a fraud; that no demand of him was necessary, and that' a dismisssal of the complaint was erroneous.

Appeal from ;a judgment of the Municipal Court of the City of Hew York for the second district, borough of the Bronx, in favor of the defendant.

Wahle *&*Stone, for appellants.

C. L. Burger, for respondent.

*462Gildersleeve, J.

Previous to October 1, 1895, one Frederick Hackman kept a liquor and cigar store, -at the corner i,of Fiftieth street and Third avenue, in this city. "Defendant"was bi's manager. For a number of years, prior to this month}-of October, 1895, the plaintiffs, who were cigarmakers, had been in the Custom of selling cigars- to said Hackman, ■ for .-¡use -in said liquor and 'cigar store. These cigars were always billed to Hackman, but were Usually paid-for by the checks of his different managers,. Hackman being, apparently, in poor health, and away a considerable portion of the time; and, while defendant was such manager, the cigars were paid for by the personal check of the defendant. ' The. defendant had been presented to plaintiffs by Hackman as his manager,. and it was as such that they-knew him. ■ On or about October 1, 1895, this liquor and ¡cigar store was sold by Hackman to the defendant; but nothing was said to plaintiffs of the change of ownership, and cigars continued.to be billed to Hackman and to be paid for by-checks signed by defendant. Upon this point, defendant, testifies as follows: “ Q. You kept taking -these goods billed to Hackman, without saying you were the owner? A. Hackman said it was not necessary to notify any one. I asked him if I should notify them . (plaintiffs), and he said it Was not necessary. Q. What directions were given by you for the sale and delivery? A. I told him (plaintiffs’ representative) to send me the cigars, and -to bill them in ■Hackman’s' name. Q. And you did not tell anybody? '.A. That is right. • Q. And you paid for the cigars? A. Yes, sir.” The receipts for such cigars, so delivered at the store in question, were given in the name of defendant. On March 10, 1891, defendant ordered 2,000 cigars of plaintiffs, which, were, as usual, billed.to Hackman, and delivered at the said store and were receipted for, ás usual, in the name of defendant. These cigars were disposed of by-defendant, and have never been paid for. Plaintiffs brought this action for ■ a -conversion, and the trial justice gave judgment for defendant. We are of opinion that this decision was erroneous.

' The úncontradictéd evidence establishes .the fact that plaintiffs believed they were selling to Hackman, and had good reason for so supposing, and that the credit-was given to Hackman, and not to the defendant. .One of the plaintiffs swears that they would not have sold had they known that the defendant was the purchaser. It clearly appears, therefore, that there was no meeting of the minds, as. between plaintiffs, and defendant, and no sale was effected. as between them. See Rodliff v. Dallinger, 141 Mass. 5; *463also Fullerton, v. Dalton, 58 Barb. 236; affirmed, 49 N. Y. 659. The defendant assumed to buy the goods on Hackman’s account and as his agent, when :in fact that agency had been terminated, and he really intended to obtain possession of the property and sell it on his own account. He knew that the plaintiffs believed that they were selling to Hackman, and that when they delivered the goods they tendered them to him as Hackman’s agent, believing that he was authorized to receive them for Hackman’s account. With this knowledge he took the goods into his possession, intending to appropriate them to his own use. This was a plain fraud upon the plaintiffs. The possession of the property by the defendant was, therefore, never a lawful one, and noi title, not even color-able, was ever vested in him. ' The moment he thus possessed himself of the property in question he was, therefore, guilty of a conversion, and no demand was necessary to make the plaintiffs’ right of action against him complete. Pease v. Smith, 61 N. Y. 477; Smith v. Smalley, 19 App. Div. 521; Hamet v. Letcher, 37 Ohio, 356. There was no sale of the property to anyone. It is self-evident that there was none to the defendant, and it is equally plain that there was none to Hackman. The. plaintiffs may have had a right to recover the price of the goods from Hackman, but only on the ground that he was estopped by his conduct from denying Dohrman’s agency. They were not, however, bound to take this position, but were at liberty to deal with the case upon the facts as they actually existed. It is clear that there was a tortious conversion of the property, and that the plaintiffs, were entitled to judgment in their favor. It was, therefore, error to dismiss the complaint.

Judgment reversed and a new trial ordered, with' costs to the appellants to abide the event. . .

Beekmax, P. J., and Giegeeich, J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.