
    PORT HURON ENGINE & THRESHER COMPANY v. OTTO GAS ENGINE WORKS.
    
    May 29, 1903.
    Nos. 13,472—(143).
    Contract — Evidence.
    A contract provided that defendant should receive from plaintiff a secondhand gasoline engine, repair and sell it, and, when sold, pay appellant $350. Held, the evidence conclusively shows that defendant is. not liable as for conversion in sending the engine out of the state pursuant to an attempt to make a sale thereof which was not consummated.
    Appeal by plaintiff from an order of the district court for Hennepin county, Brooks, J., denying a motion for judgment notwithstanding the verdict or for a new trial.
    Affirmed.
    
      Welch, Hayne & Hubachek, for appellant.
    
      H. F. Woodard, for respondent.
    
      
       Reported in 94 N. W. 1088.
    
   LEWIS, J.

Action in conversion. Trial by jury, and verdict for defendant by direction of the court. Plaintiff appeals from an order denying its motion for a new trial.

The evidence conclusively shows that the parties to the action entered into a contract whereby defendant was to take a secondhand gasoline engine belonging to plaintiff, put it in repair, and, when sold, pay plaintiff $350; that, in pursuance of this contract, defendant received the engine, and caused it to be overhauled and repaired. In November, 1900, after it had been put in order, plaintiff entered into a contract with one Erickson, of Wisconsin, agreeing to sell him the engine for $400 if after four days’ test it should prove satisfactory; $200 to be paid in cash, and the other $200 to be paid by note,, duly secured. The engine did not prove satisfactory after trial; and Erickson refused to accept it, and also refused to deliver it to defendant until he should be reimbursed for the freight advanced and certain other expenses. No sale was consummated, and at the time of tbe commencement of this action, in December, 1901, tbe engine remained in Erickson’s possession in Wisconsin.

Tbe action does not involve tbe question of liability on tbe part of defendant for negligence in allowing tbe engine to go beyond its control, nor does it involve damages for neglect to perform tbe contract, but is based wholly upon tbe theory that in attempting to make tbe sale to Erickson upon tbe terms stated, although it did not result in consummation, yet such action on tbe part of defendant constituted a control and dominion over tbe property which amounted to conversion. Tbe evidence does not sustain this view. Defendant was entitled to reasonable time, and to resort to tbe customary or usual methods of disposing of tbe property. Whether, under tbe terms of the contract, defendant would be liable for tbe whole amount if sale bad been made upon tbe terms arranged with Erickson, is not before us. It is sufficient and conclusive answer to plaintiff’s position that its contract with defendant was that tbe $350 should be paid when tbe engine was sold, and tbe evidence shows that no sale was made.

Order affirmed.  