
    THE AMERICAN MEDICINE COMPANY, Plaintiff and Appellant, v. ROBERT KESSLER, Defendant and Respondent.
    I. CONVERSION. —EVIDENCE OF.
    1. What not sufficient.
    A., being the lessee of certain premises in which he had stored.' three thousand five hundred and twenty-four bottles of medicine, in paper boxes, and boxes of other kinds, let the premises, to B. and sold him one thousand of the bottles, and at his-request allowed the balance to remain on the premises. A fire occurred on the premises. An agent of A. testified that a short time after the fire he went to the premises and found that some of the boxes were smoked by the fire, but he could not discover that any of the medicine had been destroyed or injured; that he looked into two or three boxes and saw that bottles of medicine were in them; counted the boxes, and calculated that there were two thousand six hundred and thirty-four bottles of medicine; that he called a few days after, and found none of the medicine there. Another witness testified that he called at defendant’s place of business, and saw defendant, who showed him a large pile of boxes containing medicine; that he asked defendant if he had taken all the medicine that was in B.’s place; that defendant said he had, that he took it. under a mortgage made by B., that the mortgage covered the whole place, fixtures and everything; the witness further testified that he thought the boxes had the appearance of having been smoked or burned a little in a fire, but he could not identify the boxes as having come from B.’s premises, only as defendant said they had.
    
      Before Monell, Ch. J., Sedgwick and Speie, JJ.
    
      Decided December 9, 1874.
    insufficient, and that a complaint charging the defendant with wrongfully taking and carrying away the medicine and wrongfully withholding it, was properly dismissed.
    Appeal from a judgment entered on an order dismissing complaint. The facts sufficiently appear in the opinion.
    
      Messrs. Thayer & Shoudy, of counsel for appellant.
    
      Mr. Daniel B. Robertson, of counsel for respondent.
   By the Court.—Sedgwick, J.

The following was the plaintiff's case : The plaintiff carried on the business of making medicines, at No. 1378 Broadway, from May, 1870, to March 1, 1871. At that time the company let the street floor of that building to one Smith, and the basement of it to one Zieger. The company was then in possession of three thousand five hundred and twenty-four bottles of medicine, in paper boxes and boxes of other kinds. At that time the company sold one thousand bottles of the medicine to Zieger, to be taken from the paper boxes, and at his request allowed the other two thousand five hundred and twenty-four bottles to remain in the premises. They were all piled up in the cellar of the building. From time to time an agent of the company called at the building and saw these medicines in the cellar. On February 3, 1872, a fire occurred in the premises. A short time before the fire the agent called on Zieger, and told him that the company intended to take out the medicines and divide it among the stockholders. After the fire the agent found that some of the boxes that had held the medicines were smoked by the fire. He could not discover that any of the medicines had been destroyed or injured by the fire. He looked into two or three of the boxes, saw that bottles of medicine were in them, counted the boxes, and calculated that there were two thousand six hundred and thirty-four bottles of medicine. A few days after he called and found none of the medicine- there.

About April 23, 1872, the president of the company, who was a witness on the stand, had an interview with the defendant, at his place of business, in Seventh avenue. The president did not know what quantity of medicine the company had on hand when it stopped business, nor any knowledge of the facts relating thereto, down to his seeing the defendant. He asked the defendant if he had taken any medicine from 1328 Broadway. The defendant said he had. The witness told him that the property belonged to the company, and demanded its return by the defendant. The defendant took him to a place where there was a large pile of boxes containing medicine. The defendant said he had taken that from 1328 Broadway, and under a mortgage which Mr. Zieger bad given him for loaned money. The witness asked the defendant if he had taken all the medicine that was there, and the reply was yes ; and that the mortgage was on all the whole place, fixtures and everything, the witness thought the defendant said. The medicine was in boxes, and the witness thought in wooden boxes. The boxes had the appearance, the witness thought, of having been smoked or burned a little in a fire, as the witness understood the defendant. The witness could not in any way identify the boxes as having come from Ho. 1328 Broadway, only as the defendant said they had.

This being, in substance, the case for the plaintiff, I am of opinion that the court was right in dismissing the. complaint. Indeed, apart from the defendant',s declarations, the facts, which if sufficiently proven, and of sufficient weight, would show the identity of the property-in defendant's possession, with the property of the company, taken as alleged from No. 1328 Broadway, was; slight, vague, almost imponderable, and were shown by witnesses, who, from the face of their testimony, were not certain in their minds as to the existence of the facts. As to the defendant's declarations, there is nothing tending to show that he had taken that part of the medicine in 1328 Broadway which belonged to the plaintiff, excepting that to a question of the witness, whether he, the defendant, had taken all there was in 1328 Broadway, the defendant said he had. One consideration is conclusive to my mind on this point. There is nothing tending to show the time when the defendant took what was in his possession. If it was after the fire, there was nothing tending to show that the goods which the plaintiffs' agent saw, had not been removed in parcels, and that the last parcel taken was all that was left, was all taken by the defendant, and was the property sold by the plaintiff to Zieger.

The judgment should be affirmed with costs.

SPEIR, J., concurred.

Monell, Ch. J. (dissenting).

The action was for the conversion of a quantity of medicine put up in bottles and boxes, and the question on the trial was, the ownership, identity, and conversion of the property. The cOmplaint was dismissed for insufficient evidence on these points.

It was, I think, without contradiction, that in Fébruary, 1871, when the company discontinued business, it was the owner of two thousand five hundred and twenty-four bottles of medicine, put up in boxes. Of the whole number then on hand Kthree thousand. five hundred and twenty-four) they had just previously sold to Zieger one thousand bottles. Zieger succeeded the company in the occupancy of the store, and it was agreed that the whole number (three thousand five hundred and twenty-four bottles) should be put in the cellar, the one thousand bottles sold to Zieger, to be taken out by him, as he should sell them, and the residue (two thousand five hundred and twenty-four bottles) to remain on storage. It was also uncontradicted that after a fire which had occurred there, there was found on the premises two thousand six hundred and thirty-four bottles.

This evidence was sufficient to establish the plaintiffs’ title to all the property found after the fire, except the one thousand bottles sold to Zieger.

I think, also, there was sufficient evidence to go to the jury of the conversion of at least the one thousand six hundred and thirty-four bottles.

When the plaintiffs went to demand the property, the following interview was had according to the testimony given by the president of the plaintiffs’ company :—“ I told the defendant my errand, that I understood that he had a quantity of medicine that had been taken by him, or somebody else, from the premises I have mentioned, 1328 Broadway, and he said “yes,” and I told him in substance that the property belonged to the Medicine Company, and that I was the president, and as president for the company I came there to demand it, and asked him if he would show it to me, and he said he would ; he took me back through the butcher’s shop, up stairs, and in a loft, or a place there, he showed me and my friend who was with me, the boxes it was in ; there was a large quantity of them—a large pile of them; I endeavored, I believe, to count them, but I was unable to do it; I stated to him that the medicine belonged to this company, and he said that he had loaned—[I am stating the substance, I could not tell the words]—he said he had loaned Mr. Zieger some money, and Mr. Zieger had given him a mortgage on it; I told him Mr. Zieger did not own the medicine, and never owned it—had no interest in it at all, not the slightest, and that I must demand it for the company, and that I must bring suit for it if it was not delivered; I asked him if he had taken all the medicine that was there, and he said that he had; he said he had a mortgage on all the whole place, fixtures and everything—I think he said. I have told you the substance of what occurred.”

Another witness testified that he was with the last witness, and that the president, Mr. Culver, asked the defendant, in substance, “if he had any medicine that he had taken from 1328 Broadway—1 think that was the number—and he said he had, and Mr. Culver then asked him if he would allow him to see it, and he said he would, and he took us up in the rear of the butcher’s shop; we went up stairs, in aloft, and there were boxes piled there from eighteen to twenty inches long and a foot in height; he stated that he had taken the property from 1328 Broadway; that he had a mortgage on it, as I understood, and had taken the property there by virtue of that mortgage; Mr. Culver then told him that he was the president of the American Medicine Company, and demanded the return of it to the company, and he refused to give it.”

This evidence, in connection with that which had preceded it, that the plaintiffs were the owners of all the property in the premises 1328 Broadway, except the one thousand bottles sold to Zieger,. was sufficient, I think, to show a conversion.

The defendant admitted that he had taken all the property in the place designated, which, upon the evidence, included some one thousand six hundred and thirty-four bottles of the plaintiffs’ property, and which the defendant refused to deliver.

There was further proof that Zieger had no other property upon the Broadway premises, than the one thousand bottles sold to him by the company, and some store fixtures which are not in controversy in this action, and that a few days after the fire, and after it was found that there were two thousand six hundred and thirty-four bottles remaining, the whole of such remaining property was taken away—and by the defendant.

The defendant did not deny or dispute the taking away of all the property upon the Broadway premises ; and his refusal to deliver was not put upon any ground that placed the taking in issue. He claimed to hold the property under a mortgage from Zieger, and asserted no right or title to it other than such as his mortgage gave him ; and the only defence he can make is, that Zieger was in fact the owner of all the property taken, and had the right to transfer it by way of security for his debt.

As the case stood at the close of the plaintiffs’ evidence, there was, I think, sufficient proof of ownership in the plaintiffs, at least, of a part of the property, and of conversion thereof by the defendant, to put the latter upon his defense.

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