
    Albert Simar, Plaintiff, v. Ernest P. Paris and John L. Shea, Defendants.
    
      Conversion — reshipment of goods by an agent having knowledge that his principal has sold them—when the question of the sale by the principal should be submitted to the jury.
    
    An attorney in fact, who, with knowledge that a third person claims to have purchased goods deposited by the principal in a custom warehouse, withdraws such goods from the custom house and re-exports them by virtue of his power of attorney-without the consent of the claimant, is, if the latter actually purchased the goods, guilty of conversion.
    Where the' claimant does not produce the warehouse receipts or other indicia of title to the goods indorsed or transferred to him by the principal, and the sole evidence of his ownership thereof is his unsupported- testimony, together with a bill of the goods and an order for their delivery to him, which he alone testifies were signed by the principal, the question whether he actually purchased the goods from the principal before the alleged conversion stiould be submitted to the jury.
    Motion by the defendant, John L. Shea, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court.
    
      William L. Mathot, for the plaintiff.
    
      William H. Blymyer, for the defendant Shea.
   Ingraham, J.:

The action was brought for a conversion of certain wines and liquors, the plaintiff alleging that he was the lawful owner and entitled to the immediate possession of the property described, and that, the defendants wrongfully and unlawfully took possession o£ and converted said property to their own use. Upon the trial it appeared that J. Chaigneau & Co., of Bordeaux, France, shipped to Havre, France, to be transported by steamer to Hew York, the-property in question. By the invoice of that shipment the Bordeaux firm declared that they were the sellers and forwarders of the-goods mentioned and described “ which were purchased from me by Mr. Ernest P. Paris, of Hew York.” These goods were received at Hew York and were stored in the bonded warehouse for the-account of Paris, the consignee. E. L. Garvin & Co., a firm of custom hóúse brokers, of which the defendant Shea is a member, had a power of attorney from Paris and entered the above goods as the property of Paris at the Hew York Custom House. Under the laws of the United States and the custom regulations, Paris, or his transferees, would have the right to withdraw these goods from the bonded warehouse upon payment of the duty and charges, and Shea, as a member of the firm of custom house brokers holding the power of attorney from Paris, had the authority to remove the goods from such bonded warehouse upon payment of such duties .and charges, or, without payment of the duties, to re-export the goods upon payment of the charges. While the goods were in the warehouse the plaintiff alleges that Paris transferred them to him, the plaintiff.' receiving the bill in the following form:

“ New York, Wo-»: 5th, 1896.
“ Mr. A. Simar,
“To Er. P. Paris, Hr.” (Following is a ■ description of the goods in question; and at the end is) :
“ Received payment,
Er. P. PARIS.”
The plaintiff testified that he also received from Paris two delivery orders, dated Hovember 10, 1896, which were as follows :
.“ Mm. L. Garvin & Co.:
“ Please will deliver or transfer to Mr. A. Simar, 109 West 25th St. the goods following: ”—(then follows the description of certain of the goods)
"And obligue, yours truly,
"Er. P. PARIS."

The delivery order was sent to Garvin & Co. on November 24, 1896, with a letter as follows:

“Messrs. E..L. Garvin & Co., 45 Wm. St.:
“ Gents.— Enclosed please find two delivery orders or transfers, one for you and one for the W’house, for which I would be very much oblige to you, if you would kindly look over your W’h’se entries & withdrawals, if those numbers over the order are correct, it is very important for me to have that correct, as it is for a settlement with Mr. Paris.
. “ Please let me know and oblige
“ Yours, resp’cy,
“A. SIMAR.”

To which Garvin & Go. replied: “ Referring- to yours of the-24th inst., we find that the numbers called for in your memorandum correspond with our copies of the bonded entries. In regard to-making transfers of the liquors from Mr. Paris to you, we cannot, do it. It can only be done by making the withdrawal entries and have them either signed by Mr. Paris or the entries signed over to-you.”

Prior to this time there had been correspondence between the-plaintiff and Garvin & Go.; and after this last letter was written, the plaintiff alleges that he made a payment- of $240 to Paris which, was the final settlement for the purchase' of the goods. Subsequently, and on May 10, 1897, the defendant Shea, acting as attorney of Paris, withdrew these goods from the warehouse and re-exported them to France. On the 22d day of July, 1897, the plaintiff wrote-to Garvin & Co. asking them to give the amount of the duty that, he would have to pay on the bonded goods transferred to him by Paris, and receiving no answer to that letter, he called upon Garvin & Go. in August. The defendant Shea not being there, he-called again, and finally saw Shea in September, or a little later. Shea then stated to the plaintiff that he did not answer his letter because the goods were not in this country.

It would seem quite clear that this act of Shea's in re-exporting the goods as attorney for Paris, after notice of the plaintiff's title was a conversation of the goods for which Shea would be liable if the plaintiff in good faith had purchased these goods from Paris. The goods had been entered in the custom house in blew York by Paris as the owner upon a declaration .of the shipper of the goods formally executed, which recited that the goods had been purchased by Paris, and which was evidence of Paris’ title. Being such owner, he had the right to sell the goods to the plaintiff, and it cannot be doubted but that his transfer of these goods, to the plaintiff would vest the title in the plaintiff. After notice of a sale by Paris, any interference with the goods by Shea, without the consent of the vendee, and acting as attorney for Paris, by which the possession or right of possession of the vendee was lost, would be a conversion.

At the close of the evidence, the defendants requested the court to submit to the jury the question as to whether the plaintiff had title. The plaintiff asked for the direction of a verdict in his favor,. and that the jury be instructed to assess the amount of damages, upon the ground that there were no issues in the action to go to the jury. The court denied the motion of the defendants, and held that the only question which would be submitted to the jury was the question of damages, and to that ruling the defendants excepted. We think that, upon the evidence, there was a question for the jury as to whether or not the plaintiff actually purchased these goods from Paris, and that the question should have been submitted to .them. The sole evidence as to the transactions between Paris and the plaintiff is the testimony of the plaintiff and the production by him of documents which he alleges were signed by Paris, and the production of checks, one payable to bearer and the other to the order of Paris and indorsed by him, but which also were indorsed by the plaintiff. To entitle the plaintiff to recover, he was bound to prove the transfer of this property from Paris to himself. While .it is quite true that the goods were in the possession of the custom house authorities and held by them for the payment of duties, still Paris could transfer the goods subject to this lien. So warehouse receipts transferred by Paris to the plaintiff were produced, nor does it appear that there were any of the indicia of title indorsed or transferred by Paris to the plaintiff. The plaintiff’s sole title to the goods depends upon this bill produced by the plaintiff and an order upon the custom house brokers to deliver the goods to the plaintiff, signed by Paris; but the only evidence that Paris sighed these instruments was the testimony of the plaintiff, the whole case, therefore, depending upon his unsupported evidence. Under the circumstances disclosed upon the trial, we think a question as to whether there was an actual bona fide sale or transfer of the property by Paris to the plaintiff, and whether these instruments were in fact executed by Paris and delivered by him to the plaintiff prior to the time that the goods were re-exported by the défendants was presented, and should have been submitted to the jury. For this reason the exceptions should be sustained and the motion for a new trial granted, with costs to the defendant to' abide the event.

Rumsby and McLaughlin, JJ"., concurred.

Patterson, J.

(concurring):

I concur in the view that the case should have been submitted to the jury on the question of the plaintiff’s ownership of the goods. His credibility under the state of the proof was for the jury, and it did not become a question of law under the rule as stated in the recent case of Hull v. Litbauer (162 FT. T. 569).

Exceptions sustained, new trial granted, costs to defendant to abide event. ' ,  