#### Calvin Huntington, plaintiff and respondent, *vs.*Charles and Thomas Douglass, defendants and appellants.

1. In an action for damages for the conversion of goods bought by the plaintiff of the defendant, but left in the possession of the latter, under a special agreement, if the only proof of a conversión is a demand and refusal, evidence is admissible that, at the time of the sale, the plaintiff knew that the goods belonged, not to the defendant, but to a third person, who, before such demand, took the goods away from the defendant against his will.

2. So is evidence that before the demand they were seized by the sheriff, on an attachment against such true owner. ■ a

3. The ordinary warranty of title, implied in a sale of chattels, does not estop the seller, in an action for non-delivery or conversion, from setting up that he had been deprived of their possession by paramount title. *(Per*Robertson, J.)

(Before Moncrief, Robertson and Monell, JJ.)

Heard October 9, 1863;

decided November 14, 1863.

This was an appeal from a judgment entered on a verdict for the plaintiff.

*205The action was to recover damages for the conversion of certain goods, alleged in the complaint to have been “ converted” by the defendants to their own use. The defendants, .by their answer, denied the plaintiff’s ownership of the property. They also denied any conversion thereof by them.

The cause was tried on the 25th of March,. 1853, before Mr. Justice White and a jury.

The plaintiff read in evidence an agreement signed by the defendants, in the following words and figures:

“We, the undersigned, have sold to .Calvin Huntington,' and delivered, as per invoice rendered this date, four thousand five hundred and forty-nine AA dollars, tools and mdse., for the sum of two thousand two hundred and fifty dollars, cash paid to Harlow Huntington, on debts due him from the Douglas Manf’g Co.

• The aforesaid- goods are all stored in the northeast side of the upper basement of the store now occupied by us, No. 68 Beekman street, N. Y., insured in the name of Calvin Huntington, and held subject to his order, any portion of which he may order sold, on consignment, by us, for which sales we agree to pay monthly, in cash, the amount the goods cost him. The proceeds of the goods, over and above the-costs and charges to Calvin Huntington, to go to the payment of other liabilities of Harlow Huntington, for N. R. Douglass.

June 21, 1861.”

The plaintiff also introduced in evidence, an invoice or bill of parcels of the goods, mentioned in the foregoing agreement rendered by the defendants, which was headed:

“ Mr.% Calvin Huntington,

Bought of Thomas Douglass.”

After which followed the items of goods sold, with their prices, amounting in the aggregate to $4549.53. Such bill of parcels bore date on the same day as the agreement. Below it was a receipt signed by the defendant Douglass, as follows, viz : “Rec’d payment on the condition specified in the agreement.”

There was no manual, delivery of the goods, or any other *206than that (if any) evidenced by the before mentioned written instruments, and their being separated and placed by themselves in a part of the defendants’ store. The papers were signed at the store of the defendants, in whose basement the goods in question then were.

Subsequently such goods were demanded by the plaintiff of one of the defendants, (Charles Douglas,) who refused to deliver them.

The defendants offered at the time to prove that the goods in question belonged to one Ames, and that the plaintiff knew, this at the time of the sale to him, and that before any demand was made by the plaintiff of the defendants, he (Ames,) notwithstanding the opposition of the defendants, took possession of the projoerty and removed it from their premises. This evidence was excluded by the judge, and the defendants excepted.

There was some conflicting evidence as to the delivery of the bills of sale to the plaintiff; the defendants testifying, substantially, that the person (Bottom) to whom the paper was delivered, as the agent of the plaintiff, was not to deliver it until the money was paid, and that the'money had not been paid. This was contradicted by both Bottom and the plaintiff.

The defendants also offered to prove that before the plaintiff demanded the goods, a portion of them had been taken and removed by the sheriff, under an attachment against Ames.

' This evidence was also excluded by the judge, and the defendants excepted.

At the close of the evidence the judge directed a verdict for the plaintiff, instructing the jury to assess the damages from the evidence before them. To this the defendants excepted.

The jury found a verdict for the plaintiff, and assessed the damages at $5112.10.

From the judgment entered upon the verdict the defendants appealed to the general term.

*Thomas Nelson,*for the defendants, appellants.

I. To sustain this action, which would have been an action *207of trover at, common law, the plaintiff must prove a title to the property either *general or special,*with the right to its *immediate possession,*and a *conversion by the defendants.*

II. The plaintiff had no *general property*in the goods. The answer contains a special denial of his title, as well as of a conversion.

At most he had but a *special property as security for such money as he had advanced.*Aside from the relation of vendor and vendee, the relation of *bailor and bailee*is created by the express terms of this contract. The surplus of such sale was to be applied for the benefit of Harlow Huntington. The plaintiff had no interest in that surplus. The contract expressly provides for the amount to be paid to the *plaintiff;*thus by express provision cutting off all personal claim of the plaintiff on that surplus, or upon the goods, after repayment to him of the sum he had advanced.

III. The plaintiff had no special property in the goods which will enable him to sustain this action.

(a.) The contract or bill of sale was never delivered; the conditions upon which its delivery to the plaintiff was to be made, were never performed by him.

The defendants are not estopped from proving those facts by the execution of that bill of sale. (1 *Greenl. Ev.*§ 284. *Clark*v. *Gifford,*10 *Wend.*310.) The evidence of them contradicts no provision of the writing. Its effect is to show how the money was to be applied, which in the writing the plaintiff agreed to advance. It is the proof of a *collateral*contingency unprovided for in the *agreement;*which is admissible even where the existence of the contract is not denied. (1 *Greenl. Ev.*§ 89.)

IT. The fact that the goods were taken from the possession of the defendants ■ by Ames, under a • prior paramount title, before the commencement of this suit, or a demand made, is a bar to this action. *(Shelburg*v. *Scottsfield, Yelv.*23. *Bates*v. *Stanton,*1 *Duer,*79. *Wilson*v. *Anderton,*1 *Barn. & Ad.*450.)

V. If property be sold by one in possession, but without *208title, the proper remedy of the purchaser is upon the implied warranty of title only. An action of trover is not the appropriate remedy in such case when the purchaser was informed at the time of his purchase of the defect of title. Ho fraud has been committed upon him, and he has sustained no injury for which an action in *form ex delicto*can be sustained. *(Hawkins*v. *Hoffman, 6 Hill,*588. *Whitney*v. *Slauson,*30 *Barb. 276.)*

VI. There was no conversion of this property by the defendants, and for that reason, there was error in directing a verdict for the plaintiff.

*(a.)*The demand was not made until after the goods had been takeh from the possession of the defendants.

*(b.)*It is not pretended that the defendants have used the goods, or in any way appropriated any part of them to their irse and benefit. A conversion is a positive tortious act, and it is not sufficient for the plaintiff to prove mere ngligence. (3 *Phil. Ev. Cowen & Hill’s and Edw.’s Notes, p.*539. *Andrews*v. *Shattuck,*32 *Barb.*396. *Whitney*v. *Slauson,*30 *id.*278. *Polley*v. *Lenox Iron Co., 2 Allen,*184.)

VII. Hor can the plaintiff sustain his judgment by saying that his proofs show a cause of action, if it is other than, and different from that set out in the complaint. *(Moore McKibbin,*33 *Barb.*246.) And see *Hawkins*v. *Hoffman,*(6 *Hill,*588.)

VIII. There was error in the direction of the court, that a verdict be rendered for the plaintiff for the whole amount and interest, instead of merely for the extent of the plaintiff’s lien or claim upon the property. The value of the goods taken on the attachment should have been deducted. *(Story on Cont.*§ 742, *note a. See also Ogle*v. *Atkinson,*5 *Taunt.*759 ; *Larschman*v. *Machin, 2 Stark.*311.)

*C. A. Nichols,*for the plaintiff, respondent.

I. The testimony offered, to prove a title in Oakes Ames prior to the conveyance to the plaintiff, is wholly inadmissible, as it would allow a bailee to dispute the title of his bailor, and *209a vendor to set up his own fraud against his vendee. *(Marvin*v. *Elwood,*11 Paige, 365. *Bates*v. *Stanton,*1 Duer, 79.)

II. The inquiry as to what conversation occurred prior to the execution of the papers was plainly irrelevant; the writing was the best and only admissible evidence of the intention.

III. The offer to prove that the consideration was to be paid to the defendants could not be entertained, for, by the agreement the plaintiff was to pay it to the creditors of the defendants.

IV. The court offered the defendants an opportunity to prove that there never was an absolute delivery to the plaintiff of the bill of sale.

V. The court was correct in charging that the recovery of the plaintiff must be for the actual value .of the goods, and was not limited to the amount of consideration paid.

Monell, J.

It was error to exclude the evidence offered by the defendants, that at the time of the sale Ames was the owner of the property in question; and that subsequently, and before the demand, he took possession and removed it from the defendants’ premises and control.

The demand and refusal, upon which alone the plaintiff rested as proof of conversion, was *prima facie*evidence merely, and could be repelled by proof that a compliance with the demand was impossible. *(Kelsey*v. *Griswold,*6 *Barb.*436. *Hill*v. *Covell,*1 *Comst. 522. Whitney*v. *Slauson,*30 *Barb.*278. *Andrews*v. *Shattuck,*32 *Id.*396.)

The offer was to show that at the date of the bill of sale Ames was the owner of the property; that the plaintiff knew it, and that subsequently, and before the plaintiff’s demand, Ames took possession, and removed the property *“*against the wishes and in spite of the remonstrances of the defendants.” If this evidence had been admitted, it would have repelled the proof of conversion, resting in the refusal of the defendants to deliver the property to the plaintiff, they not then having the possession, or any control over it.

Of the same character was the evidence subsequently offered *210by the defendants, that before the demand, a «portion of it had' been seized and removed by the sheriff, under an attachment against Ames. As is well settled by the cases above cited, such proof would have shown that the defendants could not deliver the property, and hence there was no conversion.

There must be a new trial, with costs to .abide the event.

Robertson, J.

There was conflicting evidence as to the absolute delivery of the instrument of the 21st of June, 1861; also, as to the waiver of any condition upon which it was' placed in the hands of Bottom. The direction of the learned judge to the jury, to find a verdict for the plaintiff, was peremptory. Unless the condition, upon which the evidence tends to show that the delivery of it was made, was one which.could not have been imposed because contrary to the face of the agreement, the charge was erroneous.

The instrument, on its face, purports to be executed for a certain'sum as *“cashpaid*to Harlow Huntington, on debts due him from the Douglass Manufacturing Company.” The defendants testified that the depository (Bottom) was not to deliver it, until that money was paid and efforts were made to procure it, There is nothing in the condition contrary to any stipulation in the agreement. If it had been absolutely delivered, it would have been evidence of the payment, and the defendant would have been obliged to disprove it.

If the instrument had been absolutely delivered, it was clearly not an absolute sale of the goods. By it the defendants were only bound to repay to the plaintiff, what is called the *cost*of the goods, and which was money paid to Harlow Huntington for debts of the Douglass Manufacturing Company ; all the residue was to go to the payment of other liabilities of. Harlow Huntington for H. R. Douglass. It probably was intended to be an assignment in trust to secure first the debt due to the plaintiff, and afterwards other liabilities of H. Huntington, for a third person, and possibly may have vested the whole title in the plaintiff.

I do not understand that a warranty of title on a sale of *211chattels can he so far implied as to estop the vendor from setting up the deprivation of possession by paramount title. Such a warranty is a mere executory covenant, the breach of which entitles the injured party to damages. The law will not tolerate the absurdity of implying both a warranty, to enable the party to recover damages for its breach, and an estoppel, which presupposes that the vendor is able to comply with the warranty. If sued, for not delivering the property as mere bailees, the defendants of course must be excused by the enforcement of a paramount title in another who had a right to the possession. The cases cited by my brother, Monell, fully establish this. There was evidence offered to show such taking possession, and it was excluded.

The delivery of the goods to the plaintiff was entirely constructive, and depends upon the delivery of the instrument of June, 1861.

I concur in thinking the judgment should be reversed, and a new trial granted, with costs to abide the event.

Judgment reversed accordingly.