
    Charles Kruse, Resp't, v. The Seeger & Guernsey Co., App’lt.
    
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed December 7, 1891.)
    
    1. Conversion—Weight of evidence.
    It is not necessary, to support a verdict for the plaintiff in an action of tort, that his claim should be established beyond a reasonable doubt.
    2. Same—Sale of samples.
    A conversion of samples furnished to defendant to be returned is established by proof of a sale thereof by defendant, and by a refusal on demand to return them.
    3. Same—Defense.
    It is no defense to an action of conversion that defendant had rendered itself unable to return the samples by a sale thereof.
    Appeal from judgment of the general term of the city court, affirming judgment on a verdict, and from an order affirming order denying motion for new trial.
    Action for conversion.
    
      A. Walker Otis, for resp’t; Wilmot & Gage, for app’lt.
    
      
       Affirming 40 St. Rep., 285.
    
   Pryor, J.

We no excuse for this appeal. The disposition of the case at the trial turned upon a pure question of fact; namely, whether the goods converted were sold to defendant, or were delivered as samples on an agreement to return them. This issue was submitted to the jury upon conflicting evidence, and with a charge which, if not unexcepted to, is certainly unexceptionable. The judgment and the order denying a new trial having been affirmed at general term, we have no authority to revise the evicence or disturb the verdict. Our jurisdiction extends only to a review of rulings upon questions of law; and of these the appellant recalls three to our attention.

1. Unquestionably, it was incumbent on plaintiff to show title to the goods; and this the jury found he did, upon evidence amply sufficient to sustain the verdict.

2. So, whether the samples were to be returned was a question of fact on conflicting evidence; and this issue too, the jury decided for the plaintiff. Nothing in the written contract prevented paroi proof that the transaction was a bailment and not a sale.

It was for the jury to draw inferences from the facts in evidence ; and they were justified in finding an understanding between the parties that the samples were to be returned.

The contention of appellant that, in an action of tort, a verdict for the plaintiff cannot be maintained unless it be supported beyond a reasonable doubt, is plainly untenable.

True, in an action of tort, “ it is essential to show a wrongful act on the part of the defendant; ” but here the wrongful act alleged, namely, a conversion, was established both by defendant’s sale of plaintiff’s goods, and by a refusal, on demand, to return them.

Appellant’s proposition, that its own self-inflicted inability to return the goods expiates the conversion, is a legal solecism indeed.

3. We observe no repugnancy in plaintiff’s position ; he does-not blow hot and cold; but from the beginning to the end of the-litigation he denied a sale and affirmed a bailment of the goods.

Judgment affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.  