
    Fuller Buggy Company, Appellant, v. Adelbert Waldron, Respondent.
    Third Department,
    June 27, 1906.
    Conversion of goods consigned for sale — wlien plaintiff’s title and defendant’s conversion for jury.
    A prior action for the vaiue of goods sold was discontinued on the agreement by the defendant to return the goods to the plaintiff. Subsequently the defendant wrote to the plaintiff that it could consign the goods to him for sale, and when asked by the plaintiff if the consigned goods were on hand replied that he had disposed of them.
    In a subsequent action for the conversion of the goods,
    
      Held, that the questions as to whether the title was in the plaintiff and whether the defendant was guilty of conversion were for the jury, and that a nonsuit was error.
    Appeal by the plaintiff, the Fuller Buggy Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 15th day of November, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term.
    N. B. Spalding, for the appellant.
    
      James A. Leary, for the respondent.
   Kellogg, J.:

We may assume that the defendant received the wagons as a purchaser. Immediately after the delivery plaintiff became alarmed as to the defendant’s financial condition, and sought the return of its property, or payment, and brought an action for such purpose; and the attorney appearing for the defendant in that action agreed with the plaintiff’s attorney that the wagons were at the plaintiff’s disposal to have the same returned if it wished, and. the action was discontinued. Defendant wrote plaintiff, “if you wish you may consign them to me,” and asked its permission to sell one for a $100 note. While the plaintiff did not reply to this letter, later it inquired if the consigned goods were on hand, to which defendant replied he had disposed of three wagons, and when asked for money said he did not have it. He thus clearly knew that the plaintiff undei'stood the remaining two wagons were with him on consignment.

There was sufficient evidence for the consideration of the jury that the plaintiff was the owner of the wagons and that the defendant had converted its property or the proceeds thereof.

The judgment should he reversed and a new trial granted, with costs to appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  