
    Henry Duprey and Mary Duprey, Respondents, v. Charles Rhodes and James B. Stearns, Appellants.
    Third Department,
    March 10, 1909.
    Conversion—judgment — res adjudicata — trial — charge.
    Where in an action for the conversion of a piano plaintiffs claimed that the original purchase price was $200 and the defendants that it-was $300, andtheissu.es were whether a -$200 note given after an admitted payment of $125 was in 'renewal of the balance due upon the $300 note as claimed by defendants, or whether the said payment was indorsed upon the $200 note by mistake, a judgment recovered in a Justice’s Court by the holder for the first installment due . upon said note, which was unpaid, established that the note remained wholly ' .-unpaid and it was error to refuse so to charge.
    Appeal by the defendants, Charles Rhodes and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Clinton on the 25th day of November, 1907, upon the verdict of a jury, and also from an order bearing date the 18th day of November, 1907, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.
    
      James B. Stearns [S. L. Wheeler of counsel], for the appellants.
    
      Wilmer H. Dunn, for the respondents.
   Kellogg, J.:

The defendants took from the plaintiffs’ possession a piano by virtue of a tight note given by the plaintiffs to one Aldridge for the payment of $200 and interest, payable $100 July 1,-1905, and $100 April 1, 1906, which note is in the form of a negotiable note, and in addition recites that it is given for the purchase price of the piano, which is to remain the property of Aldridge until the note is paid, the property not to be removed from tile town without his permission. The instrument was duly filed and a copy left with the plaintiffs. Before maturity the note was sold and indorsed to the defendant Stearns, and he, after the last payment became due, seized and sold the piano through the defendant Rhodes, a constable, to realize the amount unpaid. Plaintiffs, before the sale, tendered $85, which they claimed was the amount due, and demanded possession of the piano, which being refused this action was brought for the conversion thereof.

It is admitted that the plaintiffs at some time paid Aldridge $125 to apply upon the purchase price of the piano. They contend that the original purchase price was only $200 and that, therefore, the payment applied upon and reduced the note in question so that the $85 tendered was sufficient to pay the same. The defendants claimed that the purchase price was $300, and a note for that amount, similar in other respects to the $200 note, was given therefor, and that after the $125 was paid the $200 note was given as a renewal to represent the amount then remaining unpaid. Upon the duplicate note for $200 in the plaintiffs’ possession is an indorsement of $125. The defendants produce testimony tending to show that Aldridge lost the note and his wife applied to the plaintiffs for a copy of it, which was furnished, and the plaintiffs then informed her that $125 had been paid upon the note and she erroneously indorsed the same upon the duplicate remaining with the plaintiffs. The plaintiffs’ evidence tended to show that after the $200 note was given plaintiffs turned certain property over to Aldridge at the agreed price of $125, which thereupon was indorsed upon the duplicate of the $200 note remaining in the plaintiffs’ possession.

In September, 1905, after the first installment upon the $200 note became due, the defendant Stearns, the holder, sued the plaintiffs and Aldridge thereon in Justice Court. Tile present plaintiffs interposed a defense and Stearns recovered a judgment for the amount of that installment, with costs, which judgment has not been paid or reversed upon appeal. It was freely litigated in the trial court as to what was the purchase price of the piano, and whether the $200 note represented the original purchase price,, or whether the purchase price was $300 and the $200 represented the amount unpaid after the payments had been allowed the plaintiffs. The verdict of the jury has settled those questions in favor of the plaintiffs, and we need only consider the exceptions taken upon the trial.

By request for the direction of a verdict and by proper requests to charge, the defendants urged that the judgment in Justice Court established that the first installment upon the nóte had not been paid, and' that it, therefore, followed that the $200 note remained wholly unpaid. The exceptions to the refusal of the court to grant such requests are reversible error. The defendants were justifying their acts under this note and under Stearns’ title, and the justice’s judgment was evidence that the whole amount of the $200 note remained unpaid. The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellants to abide the event.

All concurred. ■

Judgment and order reversed and new trial granted, with costs to appellants to abide event.  