
    Orpha D. Van Houten, App’lt, v. Isaac E. Pye, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 13, 1895.)
    
    1. Conversion — What amounts to.
    Receiving goods shipped under contract of sale after notifying the vendor that the goods would not be accepted at the contract price, but would be at a less price, and selling them under the mistaken belief that the vendor had accepted his offer, render vendee liable for conversion.
    3. Same — Who may sue.
    One who has title to goods may maintain an action for their conversion, though he never had possession.
    
      Frank Comesky, for app’lt; Snider & Hopper, for resp’t.
   Dykman, J.

In the month of August, 1893, the defendant purchased a car load of baled hay of Rupright Bros., of Wren in the state of Ohio, at $16.50 a ton, to be delivered at Nyack, in Rock-land county. The freight charges for the transportation of the hay were to be paid by the defendant, and credited upon the purchase price. On or about the 22d day of October, 1893, a bill of lading for the hay, accompanied by a sight draft upon the defendant for the price thereof, was received at the Nyack National Bank. The defendant refused to honor the draft, and assigned as a reason therefor the long lapse of time since the purchase of the hay. The draft was returned to the drawers, Rupright Bros., and the defendant wrote them a letter, in which he stated that he would not accept the hay at that late day at the price he had agreed to pay, but he would pay them $15.50 a ton if they would allow it to come in at that price. At that time the car of hay was on its way to Nyack. The defendant received no answer from the-drawers to his letter to them containing his refusal and proposition. On the 3d of November, 1893, the defendant was notified by the freight agent at Nyack that a car load of hay from Rupright Bros, had been received for him. Acting upon the supposition that the consignors had accepted his last proposition, the defendant paid the freight upon the hay, which was $43, and unloaded it, and delivered it to his customers. The suit is brought against the defendant for the wrongful conversion of the hay, and the plaintiff bases her right to the hay upon the following facts: Upon the receipt of the defendant’s letter rejecting the hay, Rupright Bros, sold the same to the plaintiff, who is a dealer in hay and grain at Nyack, and drew a draft on her for $80, in part payment for the hay. That draft, with a bill of lading, was received at the Nyack National Bank on the 8th day of November, 1893, and was paid by the plaintiff on that day. In the mean time the hay had reached Nyack, as we have seen, and had been received and sold by the defendant. The cause was tried at a term of the Rockland county court, and, at the close of the plaintiff’s case, a verdict in favor of the defendant was directed by the court. The plaintiff has appealed to this court from the order dismissing the complaint, and also the judgment for costs entered upon the verdict.

In the further consideration of the case, it may be assumed that the defendant had a right to repudiate his purchase of the hay, and be absolved from his contract therefor, by reason of the delay in the delivery of the property.

The assumption is justified as against the defendant, because it recognizes the legality of his action, and because his vendors acquiesced in his repudiation, and conceded his right to recede from his contract. His refusal to accept the draft of his vendors, and his letter to them declining to receive the hay, terminated his right, to the property, and he never acquired any right to the same thereafter. He made a proposition for a new purchase of the hay, but it was never accepted. The defendant received no bill of lading for the hay, and he had no legal right to it when he unloaded it from the car, and sold it. It is true he was misled by the notification of the freight master of the railroad company, but he knew he had no right to receive the hay, or, to make the statement more mild, he did not know he had any such right. He acted upon the supposition that his second offer had been accepted by his vendors, but the assumption was false, and he is himself responsible for all the complications which arose, for they all resulted from his refusal to accept the hay under his first contract. Moreover, the evidence fails to disclose any agreement by the defendant for the purchase of the hay, although the case has been thus far considered upon the theory that he has such a contract. He said he ordered the hay, but it does not appear, excep tby inference, that the order was accepted. There was, therefore, no note or memorandum of the contract in writing; none of the goods were received previous to the repudiation; and no part of the purchase money was paid. If, therefore, it can be assumed that there was a contract for the purchase of the property, it was void, under the Statute of frauds, and the defendant obtained no property in the hay.

Turning now to the consideration of the rights of the plaintiff, we find them foreshadowed in the foregoing observations. The plaintiff is a purchaser in good faith, for value. She bought the hay, and paid for it, and thus obtained the absolute title to it immediátely upon her purchase. Although she never had the possession of the hay, she had the title, and that gave her the legal right to the possession. The defendant had no right to the property, and his taking of the same was wrongful as against the plaintiff. The defendant is placed in an unfortunate position, without any apparent intention to do wrong. On the contrary, when he discovered that the plaintiff laid claim to the hay, he made a proposition to adjust the difficulty amicably, and, if his efforts at conciliation had been met by the plaintiff in the same spirit in which they were made, she would have sustained no loss, and the necessity for a lawsuit would have been saved. Even in this view, however, we cannot disregard the rules of law to meet a hard case. We therefore reach the conclusion that the dismissal of the complaint was erroneous, and the judgment must be reversed, and a new trial granted in the county court, with costs to abide the event.

All concur.  