
    Frank McSwegan and Frank McSwegan, Jr., Appellants, v. The Pennsylvania Railroad Company, Respondent.
    
      Conversion — wrongful delivery by a carrier — the owner may demand payment of the person receiving the goods without waiving his right to sue the carrier for conversion — effect of repairing the goods while in the possession of the wrongful recipi-
    
    Upon an appeal by the plaintiffs from an order denying their motion for a new trial of an action, it appeared that the plaintiffs sold certain machinery to an-electrical company at Beverly, N. J., upon an executory contract of sale, under which the machinery was not to be delivered to the electrical company except upon its compliance with certain conditions precedent; that in June, 1893, the plaintiffs . delivered the merchandise, consigned to themselves at-Beverly, to the defendant, a common carrier, for transportation, and took the-bill of lading. The defendant converted the machinery by improperly delivering it to the electrical company. Whereupon the plaintiffs, learning of the misdelivery., up to as late as February, 1898, made fruitless, endeavors to secure payment for the merchandise from the electrical company. In June, 1893, the plaintiffs informed the defendant of the misdelivery, and asked it to look into the matter, and in August, 1893, notified it of their claim arising out of the conversion. It further appeared that persons were sent by some one, with the knowledge of the plaintiffs, to adjust the machinery in. operation at the electrical company's works.
    Upon the trial a motion was made to dismiss the complaint, upon the grounds that-the .plaintiffs had acquiesced in the delivery to the electrical company, and. could not, at the same time, demand payment for the machinery from the electrical company and sue the defendant for converting it, and that their conduct-in leaving the engine with the electrical company without demanding its return, and in acquiescing in its delivery, deprived the defendant of the right toreplevy it on the ground that no title had passed from the plaintiffs to the defendant. This motion was granted by the court.
    
      Held, that the decision was erroneous;
    That as the plaintiffs never assented to the delivery of the machinery to the-electrical company, and insisted at all times upon their right to look to the defendant, there was no actual waiver of the right of the plaintiffs to sue for-the conversion;
    That the plaintiffs did not ratify the act of the defendant because they tried to-secure payment for the machinery from the electrical company, and that their acts were merely an effort to do the best they could in view of the situation of the machinery as it then was;
    That if the plaintiffs had interfered with the machinery in question after it came into the possession of the electrical company, by repairing- it and endeavoring-to put it in condition to meet the requirements of that company, it would, amount to a recognition of that company’s right to the possession of the property, but that as it appeared that one of the plaintiffs testified that whoever went to Beverly for the purpose of repairing and examining the machinery in question while it was in the possession of the electrical company, was sent by the manufacturers, who lived in Wisconsin, and that the plaintiffs had no control over or connection with the subject, the plaintiffs were entitled to go to the jury upon that question;
    That there was no question of estoppel, as it did not appear that the position of the defendant had been changed to its detriment by any act or acquiescence of the plaintiffs.
    ' Appeal by the plaintiffs, Frank McSwegan and another, from an order of the Supreme Court, made at a Trial Term thereof and entered in the office of the clerk of the county of New York on the 16th day of April, 1896, denying their motion for a new trial upon the dismissal of the complaint directed by the court after a trial before the court and a jury.
    . The action was in conversion, to recover the value of certain goods, which were delivered by the plaintiffs to the defendant, a common carrier, for transportation and were improperly delivered by it.
    
      John S. Davenport, for the appellants.
    
      Henry G. Ward, for the respondent.
   Patterson, J.:

In June, 1893, the plaintiffs were the owners of a certain steam engine and appliances which were delivered into the possession of the defendant, a common carrier, to be transported from Massillon, Ohio, to Beverly, New Jersey. The merchandise was consigned to the plaintiffs, who held the bill of lading, and who were alone entitled to receive the goods, on them arrival at Beverly, from the carrier. The- plaintiffs made an executory contract of sale of this same machinery to an electrical company doing business at Beverly, but they Were not to deliver the same except upon certain conditions precedent to such delivery being complied with by the electrical company. The defendant improperly gave the possession of the machinery, to the electrical company, and it is not disputed that by so doing they converted the plaintiffs’ property, and became liable for that conversion. It appears that on or about the fifteenth day of June the. plaintiffs, upon learning that the electrical company had possession of the machinery, entered into. Correspondence with it, by telegram and by letter, with reference to the subject of payment, but in all the correspondence there is nothing which recognizes the wrongful delivery made by the defendant, and it relates merely to efforts to secure payment for the machinery, or a compliance with the terms upon which the original executory contract was made. In the same month of June, Frank McSwegan, one of the plaintiffs, went to the office of the defendant and informed it that the goods had been delivered, and asked it to look into it. Subsequently, and as late as February, 1896, the plaintiffs made application to the electrical company for payment of the bill for the machinery, which was never paid. It also appeared that persons were sent by some one, with the plaintiffs’ knowledge, to adjust the machinery in operation at the electrical company’s works. The plaintiffs’ witness swore, in substance, that the person was not sent by the plaintiffs. It further appeared that in August, 1893, the plaintiffs, through their attorneys, notified the Pennsylvania Railroad Company of the claim made upon it by the plaintiffs, substantially for the conversion of the machinery. At the close of the plaintiffs’ case the defendant moved to dismiss the complaint on several grounds, and, among others, because the proof showed that the plaintiffs acquiesced in the delivery to the electrical company; secondly, because the plaintiffs could not at the same time demand payment for the engine from the electrical company and sue the defendant in conversion for its value, and because the conduct of the plaintiffs in leaving the engine with the electrical company without any demand for its return and acquiescing in its delivery, deprived the defendant of the right to replevy it, on the ground that no title passed from the plaintiffs to the defendant. The trial judge granted the motion to dismiss the complaint, but entertained a motion for a new trial, which he took into consideration and subsequently denied, and from the order denying the .motion for a new trial this appeal is taken.

It is not and cannot be disputed that when the defendant delivered the machinery and appliances to the electrical company it became immediately liable to the plaintiffs in an action for conversion. The question in the case is whether the plaintiffs have •deprived themselves of the right to enforce the cause of action which had accrued against the defendant. Such a deprivation could only result from either a waiver of the right "by an adoption of the delivery or from such conduct on the part of the plaintiffs as would constitute an estoppel against the enforcement of that right.

That there was no actual waiver is clear. The plaintiffs never assented to the delivery of the machinery to the electrical company. Shortly after learning what disposition the defendant had made of the property, the attention of thé officers of , the defendant was called by the plaintiffs to the misdelivery, and again in August, 1893, the attorneys’ letter was written to the defendant concerning the matter. The plaintiffs were insisting all along on their right to look to the defendant. The learned judge in the court below based his decision of the motion for a new trial, on the ground that the plaintiffs had ratified the unauthorized act of the carrier, by treating the electrical company as the purchaser to whom delivery had properly been made, but we fail to interpret the evidence on this subject as the learned judge did. All. that the plaintiffs did with reference to the matter was, that finding that their property had wrongfully come into the possession of the electrical company they concluded to recognize the situation, provided the terms of the executory contract should he complied with. They .did not relinquish their claim against the defendant, nor were they in any sense put to-an election; they were content to receive payment and avoid trouble and litigation if the electrical company would comply with its contract, hut they steadfastly adhered to their claim against the defendant by the notification given in June and by the attorneys’ letter written in August. All that took place between the plaintiffs, and the electrical company was matter of negotiation which resulted in nothing. It was not a ratification of the defendant’s act; it was merely an effort to do the best they could under the situation of the: machinery as it then was. That did not relieve the defendant from, responsibility nor condone the conversion. None of the cases hold that a simple demand for the goods or their value amounts in a case like this to a ratification of a wrongful delivery.

An adoption might he inferred from the conduct of the plaintiffs respecting their-dealings with the machinery, after it came in hr the possession of the Beverly Company, by interfering with it and repairing it and endeavoring to put it in condition to meet the-requirements of the officers of the Beverly Company, who would thereby be recognized as entitled to demand the performance of a duty from the plaintiffs. That would necessarily involve the recognition of the Beverly Company’s right to the possession of the machinery ; but upon that subject the evidence is not as conclusive as the learned judge in the court below evidently regarded it. The plaintiffs had procured this engine from the manufacturers in Wisconsin, and the testimony of the witness Frank McSwegan, Jr., was to the effect that whoever went, to Beverly for the purpose of examining and repairing the machinery was sent by the manufacturers, and that the plaintiffs had really no control over, or connection with,.that subject. The plaintiffs were entitled to go to the jury on that question, but, instead of submitting it to the jury, the court determined that the person sent to Beverly to look after the machinery was the agent of the plaintiffs for that purpose, and that from thence it might be inferred that the plaintiffs had assented to the machinery being in the possession of the Beverly Company under a completed delivery binding upon them.

These is no question of estoppel in the case. In order to establish one, it was necessary to show that the position of the Pennsylvania Railroad Company had been changed to its detriment by some act or acquiescence of the plaintiffs. Nothing of that kind appears in the evidence. It is not set up in the answer that the Pennsylvania Railroad Company, or its agents, ever paid the slightest attention to the subject after notice of the misdelivery was given to it. Nor does it appear in the evidence that, in any way, the position or situation of the defendant was changed respecting this engine and machinery. It was not prevented from making a claim upon the Beverly Company, nor, from all that appears, did it ever contemplate making such a claim, but it remained supine from the beginning of the transaction down to the trial of the cause.

The order appealed from should be reversed and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.

Order reversed and a new trial ordered, with costs to the appellant to abide event.  