
    Abel A. Crosby et al., Survivors, Resp’ts, v. The President, Managers & Company of the Delaware & Hudson Canal Company, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    1. Conversion—Evidence sufficient to submit to jury.
    In an action to recover damages for the conversion of a quantity of lumber, which plaintiffs claimed had been sold by defendant to G. & E., their assignors, it appeared that said firm having agreed to build two boats for defendant, ordered of it the lumber in suit, specifying the kinds and quantities, but no prices. The lumber was delivered, and shortly afterwards a bill was sent charging the lumber to the firm. Defendant was pot required by the agreement to furnish lumber nor the contractors to purchase any from it. There was evidence, that G. & E., prior to the transaction in question, paid cash for lumber and that the manager of defendant had said he would allow them credit for such lumber as they bought of it. Defendant proved that it was its custom to supply lumber only for use in its boats and to take the value out of the price of the boats. L., an employee of defendant, testified that he sent the bill only as a memorandum of the quantity of lumber and its value. Held, that there was sufficient evidence of a sale to submit the question to the jury.
    2. Chares—Refusal.
    In such case tifie court declined to charge "that if the jury find that the evidence given by L. . that the bill sent to G. & E.was sent only as a memorandum of the quantity and of the quality of the lumber and its value, is true, the bill is not an admission that the lumber was sold to G. & E.” Held, that the court properly refused to so charge.
    Appeal from a judgment in favor of plaintiffs on verdict of a jury, and from an order denying motion for a new trial on the judge’s minutes.
    Action to recover the value of certain lumber of which plaintiffs allege they were the absolute owners, and that defendant wrongfully took and converted to its own use.
    
      F. L. Westbrook, for app’lt; S. L. Stebbins, for resp’ts.
   Putnam, J.

The lumber to recover the value of which this action was brought, was originally owned by the defendant, and the burden was upon the plaintiffs on the trial to show a sale thereof from the defendant to the Harndens. The question to be determined is, was there sufficient evidence of such sale to submit the question to the jury, or, as the appellant insists, should the court below have granted defendant’s motion for a nonsuit ? The trial court held that to grant such a motion “ would be invading the prerogatives.of the jury.” A careful consideration of the evidence given upon the trial, and of the opinion delivered by the appellate court upon the former trial, has led me to believe that the disposition of the case made by the court below was correct. The case has been tried four times. On the second trial a non-suit was granted, and the judgment entered thereon being affirmed by the general term, an appeal was taken to the court of appeals. That court reversed the judgment and ordered a new trial, holding that the question of fact, as to whether the transaction between the defendant and the Harndens was a bailment or sale should have been submitted to the jury.

An examination of the opinion delivered by the court of appeals and the evidence contained in the case on the second and fourth trials shows that there was no substantial difference in the testimony given upon said trials except as below stated. On the last trial the witness Larter was allowed to testity as to Ms intent in sending the bill for the lumber to the Harndens, and evidence was given of the general custom of defendant in furnishing this particular kind of lumber to builders, which is claimed by appellant not to be in on the second trial. But on said last named trial Larter swore that he sent the bill “so as to give them information of what lumber had been sent.” Also “ such lumber as they ” (the Harndens) “ required for the purpose of building the boat, they furnished, and it was deducted from the price of the boat; that was the understanding between them ; I can’t say, to my own personal knowledge, there - was any special announcement any other than that had always been the custom with them, and with others; that had been the custom in dealing with the Harndens ; furnishing them lumber for the company’s boats and for no other purpose, and to deduct the cost of that lumber from the purchase price of the boat.” Again: “ The arrangement between the Canal Company and the Harndens * * * was the same as the company made with all the other builders; the company bought the lumber * * * for the purpose of building boats for themselves, and furnishing builders along the canal; * * * that had been done with the Harndens before the lumber in question was furnished, and the amount would be deducted from the contract price of the boat.” It will thus be seen that the custom of defendant prior to the transaction in question, both with the Harndens and others, was shown on the second trial. In the opinion of the court of appeals, it is said that “ the custom of the defendant to supply lumber only for use in its boats, and to take the value out of the price of the boats, does not seem necessarily inconsistent with a sale.” Thus the appellate court assumed that such a custom was proved on the trial. Therefore, in fact the only evidence given on the last trial, except'to amplify that produced on the second, was as to the intent of Larter, which was not fully shown upon the former trial. But Larter was an employee of the defendant, and his testimony as to his intent was to a certain extent contradictory to the bill sent by him to the Harndens, which bill, as held by the court of appeals, was evidence of the sale, though not conclusive. Hence the question of the credibility of Larter was for the jury. Kavanagh v. Wilson, 70 N. Y., 177; Elwood v. The Western Union Tel. Co., 45 id., 553-4 Koehler v. Adler, 78 id., 287.

Therefore, as the only substantial difierence between the evidence on the fourth trial from that produced on the second was made by the evidence of a witness whose credibility under the circumstances had to be submitted to the jury, the holding of the court below in reference to granting the motion for a non-suit, and denying the motion for a new trial, must be deemed sustained by the decision of the court of appeals in this case, as reported in 119 N. Y, 334; 29 St. Rep., 453.

It is suggested that in the opinion delivered by the court of appeals when this case was last before it, 128 N. Y, 641; 40 St. Rep., 85, this language is used: “ The clear preponderance of evidence is in favor of this contention ” (defendant’s claim that the transaction in question was a bailment or a conditional sale), “ but we should not feel at liberty to disturb the verdict upon this issue.” Again, the evidence scarcely leaves room to doubt that the defendant “ furnished and the Harndens received the lumber on the understanding that it was to be used only on the construction of the two boats.”

Under the circumstances it cannot be deemed that the learned judge who delivered the opinion of the court meant to imply that the general term could have properly reversed the judgment as not supported by the evidence, because, as stated by appellant’s counsel, on the third trial so reviewed by the court of appeals substantially the same testimony was given as on the second. Therefore, the court of appeals, having determined that on the former trial it was error not to submit to the jury the question whether the transaction was a bailment or a sale, cannot have intended to be understood that on substantially the same evidence the same question was not properly submitted to the jury'on the third trial.

As an original question I should be of the opinion that the disposition of the case made' by the court below was a proper one. .That whether the transaction between the defendant and the Harndens was a bailment or sale was on the evidence in the case a question of fact and, therefore, to be submitted to the jury.

The Harndens, in November, 1884, agreed to build two boats for defendant The contract did not oblige them to buy lumber of the latter. The title to the boats, if completed, would remain in the Harndens. The defendant was only obliged, under the contract, to take them on inspection and approval. Subsequent to the contract for making the boats the Harndens ordered the lumber in suit, which was sent, and shortly afterwards a bill charging the lumber to the Harndens as upon a sale. There was evidence that prior to this transaction the Harndens had paid cash for lumber obtained of. defendant, and that in a letter written to them by Coe S. Young, defendant’s manager, he had agreed to give them credit for such lumber as they bought of defendant.

It is claimed by defendant that the title to the lumber did not vest in the Harndens until they put the same in the boats, until that period their possession being that of a bailee. In other words, that the Harndens did not obtain title to the lumber until they used it on their own boats. While this claim may be correct, I think that the jury could, from the evidence in the case, have found that the effect of the transaction was a purchase on credit to be paid for by the boats when completed, approved and accepted.

Here was an order for goods, a delivery thereof pursuant to the order and a bill charging the goods to the Harndens as upon a sale. There was also evidence that the Harndens prior to the transaction in question paid cash for lumber, and that the general manager of the company had said he would allow them credit for such lumber as they bought of the company. There was evidence in the case indicating a sale. The custom of “defendant to supply lumber only for use in its boats and to take the value out of the price of the boats is not held by the appellate court necessarily inconsistent with the sale. I do not see, under the circumstances, how the case could properly be taken -from the jury.

It is urged that the trial court erred in declining to charge “that if the jury find that the evidence given by Larter, that the bill sent to the Harndens November 24, 1882, was sent only as a memorandum of the quantity and of the quality of the lumber and its value, is true, the bill is not an admission that the lumber was sold to the Harndens.” Larter, in fact, testified as follows: “I sent the Harndens the bill so that they might know the lumber had been shipped in the quantity and amount they were to account for in the spring when the boat was delivered, to be taken out of the contract price of the boat * * * I did not send

it with any other intent or purpose than that which I have stated.” The question is whether, assuming the evidence Úi&t'Larter did give was true, the court erred in refusing to charge that the 'bill was mot an admission that the lumber was sold to the Harndens. I think the request of the appellant was properly denied. Larter’s statement of his intent in sending the bill is not necessarily inconsistent "with the sale of the lumber. All he says was he sent the bill so that they might know the lumber had been shipped in the quantity and amount they were to account for when the boat was delivered, to be taken out of the contract price. If it was a sale he would have had the same intent. They were to account for the lumber and it was to be taken out of the price of the boats. The intent of the witness, as he states it, was consistent with the sale of the lumber on credit, to be paid for out of the contract price of the boats. It does not necessarily contradict the admission contained in the bill, and hence the court properly refused to charge as requested.

Some other rulings of the court were claimed to be erroneous. I do not think that the exceptions thereto require discussion or call for a reversal of the judgment.

The judgment should bo affirmnd. with costs.

Herrick. J., concurs: Mayham P. J., not acting.  