#### John O. Heald, Assignee, Resp’t, *v.*Frank B. Van Siclen, Impl’d, App’lt.

*(New York Common Pleas, General Term,*

*Filed May 4, 1891.)*

1. New trial—Surprise—Newly discovered evidence.

Defendant, claiming to have been surprised by the construction given on the trial to a deposition of a witness, applied for a new trial on the ground that since the trial the witness had made declarations contradicting his deposition. No affidavit of the witness was presented, but the proof consisted solely of the affidavit of defendant, and its statements were contradicted by plaintiff. *Held,*that a new trial was properly denied.

2. Sale—Contract.

Defendant contracted to do certain work for and to sell to one G. certain second-hand plates, and the contract provided that if he failed to perform the work according to the contract in certain particulars he was to return the money paid for the plates and the same were to become his own property. *Held,*that the sale was complete on the payment of the purchase price, and before he could claim a re-sale to him under the latter clause he was bound to return the purchase price either in cash or by a credit.

3. Conversion—Partnership.

G. formed a partnership, and one of his partners testified that the firm took all the assets of the whole business of G. The firm afterwards made a general assignment. *Held,*that the title to the plates passed to the firm and under its assignment, and the refusal of defendant to deliver them on demand of the assignee constituted a conversion.

5. Same—Damages.

The plates in question were second-hand ones, but there was evidence that they had some value. But there was no proof that the plaintiff intended to use them or that any other person needed them. *Held,*that the jury had a right to infer that they were worth the amount placed upon them in the contract for their sale to G.

. Appeal from judgment in favor of plaintiff against the defendant Van Siclen, entered upon verdict, and from order denying motion for a new trial on the minutes, and also from order denying motion to set aside the verdict and for a new trial on the ground of mistake and error of fact

*G. A. Clement,*for app’lt; *Henry P. Starbuck,*for resp’t.

Daly, Ch. J.

This is an appeal from a judgment in favor of the plaintiff against the defendant Van Siclen, entered upon a verdict for $800, and from an order denying a motion made upon the minutes for a new trial. There is also an appeal from an order denying a motion made upon affidavits to set aside the verdict on the ground of surprise, newly discovered evidence and mistake, and that the verdict and judgment are contrary to the actual facts.

The action was brought to recover damages for the conversion by the defendant of certain electrotype plates formerly belonging to G. H. Gardner & Co., the plaintiff’s assignors; and the defence was want of title in the plaintiff, and that question and the question of value were those litigated upon the trial.

It appears that originally G. H. Gardner, who was in the export commission business, employed Van Siclen to prepare an illustrated catalogue of manufactured goods to be distributed in *188foreign countries. Van Siclen had previously compiled such a catalogue for the firm of R. W. Forbes & Son, and the electrotype plates in question were those used in printing the latter’s catalogue. V an Siclen offered to procure for and sell to Gardner these plates for the sum of $800.

The contract between Gardner and Van Siclen for the preparation of such catalogue and the purchase of said plates was in writing, signed by the parties, ana dated September 1, 1883. It provided as follows: “ Upon the signing of these articles of agreement to pay to the said Frank B. Van Siclen the sum of $800 for the electro-plates of the pages of Messrs. E. W. Forbes & Son’s catalogue, said electro-plates then becoming the sole property of the said Guy H. Gardner; ” and it went on further to provide that if the said Frank B. Van Siclen should fail to deliver to the said Gardner a specified number of bound copies of the catalogue, and certain advertising contracts therefor contemplated by the agreement, within eight months, “then and in that case he is to return to the said Guy H. Gardner the sum of $800 paid to him upon the signing of these articles' of agreement for the electroplates of B. W. Forbes & Son’s catalogue pages, and the said electro-plates are to again become his sole property.” Gardner paid the $800 to Van Siclen for the said plates in September, 1883.

After making the above agreement, Gardner took into partnership the other of the plaintiff’s assignors, and they made with Van Siclen a new agreement in writing, dated March 10, 1884, superseding the previous agreement and providing for the preparation by Van Siclen of a catalogue in five different languages, but containing no provision concerning the said electro-plates; and nothing in writing between the parties concerning such plates was afterwards executed; but Van Siclen testified that after the new contract of March 1, 1884, was made, Gardner made the following arrangement in respect to the plates, namely, that Van Siclen should keep them and would refund the price paid therefor, $800, out of his compensation for the compilation of the new catalogue in five languages.

It was upon this verbal agreement that the defendant relied in disputing the ownership of the said plates by the plaintiff and his assignors. The only denial of this parol contract is found in the evidence of Gardner taken *de bene esse*by the plaintiff and read upon the trial of the action, Gardner being at that time out of the state. He testifies that he never sold nor in any way conveyed the plates back to Van Siclen and never received any re-imbursement of his payment for said plates, and that he never made more than one contract for the purchase of the plates.

The question as to whether there was such an arrangement was submitted to the jury on this testimony. No objection was made that the evidence of Gardner was an insufficient denial of Van Siclen’s statements. It is now contendéd that the evidence of Van Siclen was undisputed, and that Gardner does not deny the substantial truth of Van Siclen’s testimony, but this objection was not taken at the trial. The court submitted the question as a disputed *189question of fact upon the evidence and the defendant seems to have conceded that it was.

It is upon this point that the motion for a new trial on the ground of newly discovered evidence, etc., was afterwards made, it being alleged by the defendant that he was surprised at the trial to have the court construe the testimony of Gardner as a denial of his own verbal testimony in regard to this matter, and that after the trial he went to Hew Haven and had an interview with Gardner, and asked whether it was not the fact when the first contract was annulled that he (defendant) was to repay the $800 by having it deducted on a settlement of commissions, or what was to become due under the new contract? and that said Gardner answered “ Yes,” but declined to swear to an affidavit of the fact, promising to write a statement to the plaintiff’s attorney. In reply to this assertion the plaintiff and his attorney swear that they have been informed by Gardner that since the trial he has had no conversation with the defendant inconsistent in any way with his (Gardner’s) testimony herein read upon the trial, and, in particular, did not tell defendant, nor think, that the plates which formed the subject of this action were ever sold or conveyed back to the defendant in any way after the purchase of them by said Gardner.

It appears that when the testimony of Gardner was taken *de bene esse*the present counsel for Van Siclen attended on behalf of his co-defendant, MacGowan, and he makes an affidavit, saying : “ Deponent did not know what he (Gardner) would swear to, and regarded him as an adverse, unfriendly party in interest, and, as prudent, cross-examining counsel, representing the defendant MacGowan, put only such questions to said Gardner on cross-examination as were safe to put.”

It does not appear why defendant Van Siclen was not represented upon the taking of that deposition. He ought to have been, and might, on cross-examination, have elicited from Gardner either an express denial or express admission concerning the verbal agreement on which he relies. It appears that MacGowan’s counsel refrained from inquiring of Gardner on this point. As plaintiff’s counsel could not know what verbal agreement Van Siclen might swear to, it was not to be expected that-their examination should be more specific than it was. I do not think that there was any intention to surprise the plaintiff on the trial with evidence of this verbal contract, for, if there had been, defendant’s counsel would undoubtedly have been astute enough to have made the point that no express denial of it appeared in Gardner’s testimony; on the contraiy, both parties in perfect good faith .submitted the case, as I think it should have been submitted to the jury, as presenting a conflict of testimony on that point. The evidence given by Gardner that he never sold the plates back to Van Siclen, nor conveyed them to him, and never made any but the one contract for the purchase of the plates, although general, is a complete denial of Van Siclen’s testimony, and required the submission to the jury of the qestion whether the alleged verbal agreement was made. The jury found in favor of the plaintiff upon that issue, and I think they were justified. If such an agree_ *190ment had been made, there should have been some evidence of a credit by Van Siclen to Gardner & Co. of this sum of $800 upon his claim for moneys under the contract of March 1, 1884, upon which the $800 was, according to Van -Siclen’s testimony, to be allowed ; but, on the contrary, it appears that in the proof of claim against the assigned estate of Gardner & Co. Van Siclen gave no-credit for the price of these plates.

The motion for a new trial was properly denied, in view of the testimony in the case and the affidavits submitted. The proof of Gardner's alleged declarations since the trial, contradicting his deposition *de bene*esse, depends upon the oath of Van Siclen, the most interested party to the litigation; and in the absence of an affidavit from Gardner, and in view of his having denied those declarations, it would have been manifestly unjust to the plaintiff to order a new trial on an issue already fully and fairly litigated between the parties. The defendant claims another ground for supporting his title to the plates, and that is, that the first written agreement between him and Gardner, by which he agreed to sell the plates to the latter, was an executory or conditional sale, which was never completed; that although the first clause of the contract transfers the title of the plates to Gardner, the latter clause vests the title in Van Siclen again, provided he failed to furnish the specified number of copies of the book and advertising contracts. This position is untenable. The sale was completed by payment of the purchase price by Gardner to Van Siclen, and before he could claim a re-sale to him, under the last clause of the agreement, he was bound to return the purchase price, which he never did, either in cash or by a credit under the alleged verbal agreement; and the jury have found that the latter was never made.

There is no merit in the objection that Gardner & Co. did not become vested with the plates that were part of the property of Gardner under the copartnership agreement. Deggett, one of the firm, testified that the firm took all the assets of the whole business of Mr. Gardner. This is not disputed.

The title to the plates being in the firm and passing under the assignment, the refusal of the defendant to deliver them upon demand of the assignee constituted a conversion.

The only remaining question to be considered in the case is that of damages. It was contended by the defendant that the-only value of the plates was the old metal, for which he sold them, and the jury gave a verdict for the sum of $800, the amount at which defendant sold the plates to Gardner. Much evidence was received as to whether these-plates, from which a great number of pages containing cuts or illustrations of manufactured goods' could be printed either page by page or by using the cuts separately, had a value. There was no proof that the plaintiff intended to use them, or that, any other person needed them. The jury, of course, were bound to reject the conjectures concerning their value, but the evidence in the case sufficiently indicated that these cuts or illustrations, had some value, and it was not necessary to show'that they were *191required for immediate use. They were second-hand articles when Van Siclen sold them to the plaintiff for $800, he having obtained them for that purpose from Forbes & Co., at an outlay of $285.50, and the jury had a right to infer that, as second-hand plates, they were worth the amount he placed upon them in his transaction with plaintiff’s assignor, Gardner. o

None of the exceptions in the case requires reversal.

The judgment and orders from should be affirmed.

Bischoff and Pryor, JJ., concur.