
    Harvey C. Dunham, etc., Respondent, v. Troy Union Railroad Company, Appellants.
    Where the issue is one of fact, upon which the evidence is conflicting, it is proper for the court to deny a motion for nonsuit.
    A demand upon the director of a railroad company, acting as its agent, for the return of property taken by his direction as such agent, is sufficient to authorize the party claiming the property and making the demand, to bring an action against the company for its recovery.
    When a party is in possession of goo.ds belonging to another, which he is bound to deliver on demand, if he, without authority from the owner, parts with that possession to one who refuses to deliver them, he is responsible in detinue equally with the party refusing. (See Nichols v. Michael, 23 K T. 264.)
    
      E. L. Fursman, for the appellants.
    
      M. I. Townsend, for the respondent.
   Davies, Oh. J.

The complaint in this action alleges that the defendant became possessed of and wrongfully detained from the plaintiffs 2,146 railroad ties, the property of the plaintiffs, of the value of $836.94. Wherefore the plaintiffs demanded that the defendant be adjudged to deliver the said property to the plaintiffs, and pay the plaintiffs’ damages for the detention thereof, and that said property may be forthwith delivered to the plaintiffs. The answer contained a general denial, and the cause came on for trial at the Rensselaer Circuit, before Mr. Justice Peckham of the Supreme Court and a jury. Upon the trial it appeared that the plaintiffs had sold and agreed to deliver to the firm of Deckers & Worthly 17,000 railroad ties, and which were to be delivered on or before the 1st day of August, 1853. This agreement bore date the 8th" day of March, 1853. It was provided therein that the ties were to be delivered on the line of the Troy Union Railroad, in quantities as the said Deckers & Worthly might require. The ties when delivered were to be approved of by the chief engineer of the defendants’ road, and the monthly estimates of the engineer of the ties delivered, under the agreement, were to be paid for on or before the 12th day of the succeeding month, less ten per cent of such estimates, which was to be retained until the whole number of ties was delivered and approved as therein specified, and then said ten per cent was to be paid within thirty days thereafter to the plaintiffs.

It also appeared that on the 9th • of February, 1853, the said Deckers & Worthly had entered into a contract with the defendant to construct and finish in every respect, in the most substantial and workmanlike manner, and to the satisfaction and acceptance of the chief engineer of said company, the grading, masonry, superstructure, bridging and fencing of said railroad, furnishing all the materials required, and the same was to be paid for upon monthly estimates of said chief engineer.

It further appeared that the plaintiffs had on a lot adjoining the defendants’ road 2,146 ties over and above the number required to fill and complete said contract. It appeared1 that the same were taken by the superintendent of the defendant on or about the 8th of August, 1854. The plaintiffs proved a demand of the ties, at the office of the defendants, of Mr. Tail, one of the directors of the defendants’ company, and a refusal, and the value of the ties on the day the same were taken, and the interest thereon, and rested.

The defendant then moved for a nonsuit on the following grounds:

The court denied the motion. To which ruling and decision the defendants then and there duly excepted.

Further testimony was then taken and the motion-for a nonsuit was subsequently renewed upon these grounds:

1. That the plaintiff has shown no title in himself, at the time of the commencement of the action, to the 2,146 ties claimed.
2. That the defendant has shown title in Decker & Co.
3. That the defendant has shown title in itself.
4. That it appears that the 2,146 ties claimed were part of the 17,000 delivered by the plaintiffs under their contract with Decker.
5. That these ties were paid for by defendant to .Flood, one of the owners, and were taken under a license from him.
6. That the plaintiff had shown no sufficient demand of the ties in question, and cannot recover without such demand.

The court overruled the motion and refused the nonsuit, to which ruling and decision the defendant then and there duly excepted.

Further testimony was then adduced on both sides, and the jury found a verdict for the plaintiff for $1,210.35. And judgment thereon was affirmed at the General Term.

No question is presented for the consideration of this court, except upon the refusal to nonsuit the plaintiff. No other exception was taken upon the trial.

The first five grounds of that motion presented only questions of fact, and upon which there was conflicting evidence, and the court properly refused to withdraw their consideration from the jury. Their verdict has established all these questions in favor of the plaintiffs, and the simple question is presented, whether a sufficient demand was made for the ties in question before suit brought.

Mr. Vail, the director of whom this demand was made at the office of the company, was acting as the recognized agent of the company in this matter. The superintendent of the defendant, who- took the ties, testified it was done by the direction of Mr. Vail, a director of the company. The demand upon him was therefore sufficient to authorize the plaintiff to maintain this action. The defendant insists that detinue will not lie, as there is no proof that the ties were in the actual possession of the defendant at the time of the demand, or at the commencement of the action. And it is claimed tliat the proof shows that the defendant had parted with the possession of at least a portion of the property to the Hew York Central Railroad Company. This court have held the contrary of this. In Nichols v. Michael (23 N. Y. 264), we said: “ That when a person is in possession of goods belonging, to another, which he is bound to deliver upon demand, if he, without authority from the owner, parts with that possession, to one who refuses to deliver them, he is responsible in detinue equally with the party refusing. He contributes to the detention. It is the consequence' of his own wrongful delivery.” The motion for a nonsuit was therefore properly refused.

The judgment should be affirmed with costs.

Parker, J.

This action is brought to recover possession of 2,146 railroad ties, which, it is alleged, the defendant wrongfully detains from the plaintiff.

The question in the case arises upon an exception to the decision of the court upon the trial, denying a motion for a nonsuit; so that the inquiry here is, whether there is any evidence in the case upon which the jury were authorized to find a verdict for the plaintiffs.

The plaintiffs were under a contract with Decker & Worthly (who were contractors to build defendants’ railroad and supply the materials therefor), to sell and deliver them 17,000 ties, such as should bear inspection of the chief engineer of the road. They did haul and deposit on a lot called the Warren lot, near a brewery and adjacent to the railroad, more than the requisite number, and on the 17th of October, 1853, they had on said lot (after having delivered 10,650), 9,882 ties, out of which, according to a computation and agreement on that day made between the plaintiffs, Decker & Worthly, and the secretary of the company, it required 7,369 to make up the full number of 17,000. Of this required number, 3,800 was for the estimate for September, 1853, and the balance for rejected ties and deficiencies for the estimates of previous months. There were, therefore, upon the lot 2,513, over and above enough to fulfill the contract between the plaintiffs and Decker & Worthly, -provided they would all pass - inspection. On the day above mentioned the- secretary- of, the company, with the consent of.Decker & Worthly, paid the plaintiffs the amount to which the 3,800 would come, less 10 per cent, for which he agreed to be accountable, and the plaintiffs authorized the company to take the 7,369, which it appears included all that would be required to complete the road.

Between that day and the 22d of February, 1854, when the road was opened, the company proceeded to take ties from time to time, from the Warren lot. On the 8th of August, 1854, they took 2,146 ties from that lot, some 1,700 of which were sold to the Central Railroad Company, and the residue piled near the depot, and used for repairs. These the plaintiffs allege, were over and above the 7,369 which defendants were authorized to take, and whether or not they were so, is the question of fact in the case.

There is no direct and positive evidence that the defendants took more than the 7,369, to which they were entitled, but it appears that after the taking of the 2,146 in question, only a few hundred were left scattered about on the lot So that the surplus 2,513 were mostly taken by some person or persons. It appears that no person had authority from plaintiffs to take any from the lot except the defendant, nor was it shown that any other person did take any; but it appeared that defendant was engaged from October 17, 1853, to February 22, 1854, in taking ties from the lot for the road, from time to time, though how many it so took does not appear.

It appeared from the estimates introduced in evidence by the defendant, that the whole number required for the road was 16,882.

It is argued by the plaintiffs’ counsel that the jury had the right to conclude that the defendant had used up the 7,369, which would make up the 17,000 by the 22d of February, 1854, and therefore, that the 2,146 taken in August must have been a portion of the 2,513 surplus which it had no ■ right to take, especially as but about the difference between these two numbers was left on the lot after the 2,146 were taken; and that this conclusion is strengthened by the fact that the 2,146 were riot needed nor used fur the construction of the road, and hence could not be included in . the 7,369 which according to the estimate were all or nearly all needed.

It is impossible to say, in the absence of all evidence, as to the number taken by the company, between October, 1853, and February, 1854, that there was no foundation for such conclusion. It was therefore a case for the jury, and the nonsuit was properly denied.

But the defendant insists that the evidence shows that the ties in question were piled, when taken by defendant as complained of, within the bounds of the road, and therefore were in defendant’s actual possession, from which the presumption arises that the title was in the defendant, and that the plaintiffs did not overturn this inference by evidence.

It is by no means clear that the ties were piled within the bounds of the railroad; but if they were at the time when taken up and carried to or near the depot, it is shown they had, by some person unknown to the plaintiffs, and without their authority, been removed from a place farther back on the lot to a place near the track, which fact, at least, tends to rebut the presumption of title arising from their being in defendant’s possession, by being piled within the bounds of the road. Moreover the whole case proceeds upon the assumption on both sides, that the ties in question -are a portion of those furnished by plaintiffs to Deckers & Worthly, and that unless they are a part of the 7,369, which plaintiffs gave the defendant liberty to take, they are plaintiffs’.

It is said again by the appellants’ counsel that there is no evidence that the ties were in the possession of defendant,, at th'e commencement of this action.

It is shown that the defendant took them on the 8th of < August, 1854, and it appears from the record that the suit, was commenced on tlie 9th of August, 1854. Now, though it appears that the larger portion of them was sold to the Central Railroad company, it is not shown when, and it will not be presumed that this, without considering what would have been the effect of such want of posséssion, if it had been shown, it is a sufficient answer to the objection now made that it was not shown upon the trial. Also that no such objection was taken at the trial.

The record does not present any such error as calls for a reversal of the judgment. It must therefore be affirmed. . All concur.

Judgment affirmed.  