
    HENRY A. RICHARD, Appellant, v. ISAAC B. WELLINGTON and others, Respondents.
    
      Conversion — waiv&r — estoppel.
    
    Appeal from an order made at the Circuit upon the trial of this. action, nonsuiting the plaintiff.
    The action was brought for a wrongful and fraudulent conversion of a large amount of wines by the defendants, the wines being the property of plaintiff. The bulk of the wines went into defendants’ possession in 1866, and the remainder in 1868. 1 Upon the trial the plaintiff was the principal witness, and testified to a tortious sale. Upon his cross-examination, it appeared that bills were rendered by plaintiff to defendants, at the dates when the property went into defendants’ possession. That subsequently thereto, and previous to the spring of 1870, $32,272.63 had been received on account thereof, the whole value being claimed to have been $44,826.34. That in March, 1870, an account as of wines sold by plaintiff to defendants was rendered, and on the 28th of July, 1870, a claim was made for the balance as for goods sold by plaintiff to defendants, crediting the payments. Defendants paid all the duties on the wines. Plaintiff made no inquiry about the payment of the duties, although he knew that the wines should have been confiscated by the government of the United States if the duties were not paid. The plaintiff knew that the defendants were selling the wines very soon after the defendants received them. Defendants failed,in business in December, 1870.
    The General Term held, that the nonsuit was proper. That there was either a sale or a waiver of an unauthorized sale by receiving large payments as for goods sold, or an estoppel, by reason of plaintiff’s silence, when he knew defendants were paying the duties and selling the property, and receipt from defendants of large sums on account.
    
      Dams <& Lyon, for appellant. George W. Parsons, for respondents.
   Opinion by

Barnard, P. J.

Present — Barnard, P. J., and Talcott, J.

Judgment affirmed, with costs.  