
    John F. Saunders et al., Resp’ts, v. William H. Payne, Impl’d, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 2, 1891.)
    
    
      T. Sales—Where goods are delivered for inspection, no title passes.
    The plaintiffs, importers of diamonds, delivered diamonds to defendant with a memorandum as follows : “The following goods are for your inspection and remain the property of Saunders, Ives & Co., until a correct invoice of those selected is sent to you.” Held, that such a contract gave defendant no title to the goods, and no right to sell them.
    '3. Trial—Error in charge to jury.
    Although the charge may be improper, if it is not hurtful to appellant, he cannot complain.
    Appeal from a judgment of the general term of the city court •of New York, affirming a judgment of a trial term, and from an ■order denying a motion for a new trial.
    
      Jar dine Lyng, for app’lt; Franldin Bien, for resp’ts.
   Allen, J.

The action was brought to recover damages for ■diamonds delivered by plaintiff to defendant Plaintiffs are importers of diamonds in the city of New York. In the month of December, 1887, defendant Payne called upon plaintiffs, and said he had a customer for some diamonds, and wished plaintiff to give him some to show to his customer. Plaintiff at that time declined to give him any, but some days -afterwards delivered to defendant certain diamonds of the value of $1,148.85 on memorandum us follows: “ The following goods are for your inspection and remain the property of Saunders, Ives & Go. until a correct invoice •of those selected is sent to you. On return of goods, please insist on having this memorandum checked by the person who received it.” (Here follows a description of the goods.) The complaint ■alleges the delivery, the demand and the refusal to return. The answer denies all the material allegations of the complaint, and ■sets up that the defendant purchased the goods from the plaintiffs. Upon the trial, the delivery of the goods and their value were admitted.

There are three points urged by the appellant as ground for reversal of the judgment which require notice. It is claimed by the •appellant that the memorandum, above referred to, gave defendant authority to sell the goods. And the appellant refers to the ■case of Smith v. Clews, 114 N. Y., 190; 23 N. Y. State Rep., 166, in support of his claim.

That was an action under the Code of claim and delivery of personal property alleged to belong to the plaintiffs and wrongfully withheld by the defendant. One Miers had obtained some diamonds from the plaintiffs on memorandum, which said they were delivered to him on approval to show to his customers, and sold "them to the defendant Clews. The question in that case was whether the defendant Clews obtained the title to the diamonds, and that depended upon Miers’ authority to sell. The court construed the contract, in the light of the evidence before it, to confer •on Miers the power of sale, and placed emphasis on these facts : Plaintiffs were dealers in diamonds, they knew Miers, and that he was engaged in the business of diamond dealer, they had on former occasions entrusted diamonds to him, and he sold them and accounted for the proceeds of the sale without any fault being found on account of any authority to sell.

Upon these facts, and upon the memorandum, the "court thought that Miers had the power to take the diamonds, show them to the customer, and if approved of by the customer, sell them to him. It must be borne in mind, however, that that action was not between the owner of the diamonds and the person who. obtained them upon memorandum, but between the owner of the diamonds and the purchaser from that person in good faith. That, is not this case. This action is between the parties to the contract. It is in writing, and there is nothing vague or equivocal about it; it passed no title to the defendant Payne, and does not import any authority to sell. As between Payne and the plaintiffs it appears from the contract that the diamonds were received for inspection and remained the property of Saunders, Ives & Co. until a correct invoice of those selected was sent to him. How the contract would be construed in a suit between the plaintiffs and a third party who might have purchased the diamonds and paid for them we are not required to consider.

As between the parties to this action the contract is plain. There is no proof in the case that the diamonds were ever sold by the defendant to anyone, and no proof that they ever went out of his possession. Defendants were not witnesses upon the trial, and offered no witnesses except one Nellis (who testified that he was twenty-one years old) to prove the custom of the trade in memorandum goods.

Testimony of this character might be material in an action between plaintiffs and a purchaser of diamonds from the defendant. As this is not such a case, and there is no proof whatever that the diamonds were ever sold by the defendant, it does not seem material here. The judge left the question of the contract to the jury in a very fair charge, and, we think no principle of law has: been violated in this branch of the case.

Appellant next urges as error that there is no proof of a sufficient demand upon the defendant. The proof on this subject is that on or about January 5,1888, Albert Kraus, a member of plaintiffs’’ firm, went to the house of the defendant Payne with a demand in writing (marked in evidence Ex. D), and was told by his servant that Payne was sick and upstairs; that he handed the written demand to this servant, and the servant went upstairs, and after a while Payne’s wife came down stairs having the letter in her hand open. This proof raises a strong presumption that the defendant-received the notice, and we think the demand was sufficiently proved. At all events, the jury, on sufficient evidence} have found the fact of the demand and their verdict is conclusive.

Appellant claims error in the charge of the court. The court, charged the jury as follows: “A conversion means wrongful taking and keeping; not giving up again after wrongfully taking after demand has been made, but practically, in plain English, .stealing; that is the lay English of it.” There can be no doubt that this was an improper charge. But who was prejudiced by it? Most clearly, the plaintiffs; it made it more difficult for them to get a verdict from the jury. And if the plaintiffs had been defeated in the action, and had appealed, a strong ground would be presented for reversing the judgment and awarding a new trial to them. But it seems to us that no mode of reasoning can make it appear that this part of the charge has in any. way injured the defendant.

The judgment and order appealed from should be affirmed, with ■costs.

Bischoff and Pryor, JJ., concur.  