#### Warshawsky, Respondent, vs. Rosengarten and another, Appellants.

*December 17, 1907*

January *8, 1908.*

*Trover and conversion: Sales: When title passes: Evidence.*

In an action for tlie conversion of certain goods purchased by the plaintiff from the defendants, evidence as to the conduct of the parties, stated in the opinion, the payment of the purchase price before delivery, and the control of the transfer and shipment of the goods by the plaintiff, are *held to*support a finding by the jury that the parties intended that the title to the goods should pass at the time of the purchase.

Appeal from a judgment of the circuit court for Rock county: Gboege Geimm:, Circuit Judge.

*Affirmed.*

Plaintiff is a junk dealer in the city of Obicago. Defendants are collectors of and dealers in junk in the city of Beloit. The complaint alleges that plaintiff purchased from the defendants a certain lot of junk at an agreed price of $800; that this sale was consummated at the defendants’ place of business in Beloit; that the goods were all in the storeroom of the defendants when they were purchased and part of the purchase price was paid; and that the defendants agreed to haul the junk for plaintiff from defendants’ storeroom to the cars secured for the shipment and to skip' the same to the plaintiff at his place of business in Ohicago. It is alleged that at the time of the delivery of the junk the defendants unlawfully and wrongfully converted a portion thereof of the value of $200 to their own use. It is also alleged that the defendants, for the purpose of preventing the discovery of the conversion, wilfully and purposely misdirected the cars by shipping the junk to a point far distant from plaintiff’s place of business in Ohicago. Plaintiff alleges that because of the misdirection of the cars he was put to great expense in recovering the goods and that he lost much of the time of his men by being prevented from working on the material.

*289There was evidence that part of tbe goods wbicb were in tbe storeroom, tbe contents of wbicb were included in tbe sale, were taten therefrom to tbe cars but were never placed in tbe cars. There was also evidence as to tbe amount and character of these goods and that on tbe day after tbe loading they were taken back to tbe defendants’ storeroom and appropriated by them. Tbe bill of lading was in tbe defendants’ name, was sent to tbe plaintiff, and a draft for tbe amount due, wbicb was attached thereto, was paid by him before tbe arrival of tbe goods. There was evidence that the plaintiff paid switching charges wbicb he need not have paid if tbe cars bad been shipped to bis place of business, and that bis employees were idle for some time because of tbe non-arrival of tbe junk.

Motions by tbe defendants for a judgment notwithstanding tbe verdict, for tbe direction of a verdict, and to set aside the verdict and to grant a new trial were denied, and judgment was rendered for tbe plaintiff for tbe amount of damages found by tbe jury and for tbe costs of the plaintiff. This is an appeal from such judgment.

Eor tbe appellants there was a brief by *T. 8. Nolan,*attorney, and W. *JB. Rubin,*of counsel, and .oral argument by *W. G. Zabel.*

Eor tbe respondent there was a brief by *Fethers, J&ffris & Mouat,*attorneys, and *O. D. Rosa,*of counsel, and oral argument by *M. 0. Mouat.*

Siebeoeeb, J.

Appellants contend that tbe title to tbe property covered by tbe purchase of plaintiff from them did not pass until tbe goods arrived at Chicago at plaintiff’s place of business. This question is controlled by tbe intention of tbe parties to tbe contract. It appears that defendants in tbe first instance bargained with plaintiff for tbe sale of part of tbe goods, and that be thereafter, while at defendants’ place of business in Beloit, purchased tbe remainder of *290defendants’ stock, which comprised the *greater portion,*of the goods purchased. There is evidence tending to show that before the sale was concluded at the lump price of $800 some of the goods were separated and laid out in the storehouse of the defendants in plaintiff’s presence; that plaintiff then paid a part of the purchase money, and that defendants agreed to transfer the goods from their storeroom to the cars; that plaintiff remained with defendants to attend to the loading of the goods; and that, after paying an additional $100 of the purchase price to the defendants before the loading into the cars had been completed, he directed defendants to attend to billing the goods for him and shipping them to Ms address at Chicago. It appears that plaintiff received the bill of lading from defendants and the attached draft for the unpaid purchase price and paid it several days before the goods had arrived at his place of business in Chicago. Erom these and other facts and circumstances adduced in evidence we are persuaded that the juiy were warranted in concluding that the parties intended the title to the property purchased should pass at the time of the purchase and before the goods were transferred to the cars at Beloit. The conduct of the parties, the payment of the purchase price before delivery, and the control of the transfer and the shipment of the goods by plaintiff strongly support the conclusion of a completed sale and transfer of the property before the shipment from the defendants’ storeroom. Since the jury were justified in finding the plaintiff owned the goods when they were being loaded into the cars, it follows, in view of the other evidence adduced, that their verdict finding defendants guilty of appropriating and converting a portion of them to their own use must stand. The court properly awarded judgment in plaintiff’s favor.

*By the Court.*— Judgment affirmed.