
    Max Hartman et al., Appellants, v. James Hicks, Respondent.
    (Supreme Court, Appellate Term,
    July, 1899.)
    Conversion — Against consignee of goods, with right to sell — Judgment on contract.
    In an action upon an agreement consigning goods to the defendant, with a right in him to sell them, he to pay an agreed valuation in case of a sale, and, in default thereof, the consignors to retain the title, and to be entitled to a redelivery, the consignors failed to show that, at the time of their demand for the goods, they remained unsold in the defendant’s possession.
    Held, that an action for conversion could not be maintained as the demand was insufficient.
    That the liability of the defendant was upon contract alone.
    That where the complaint was broad enough, a judgment for the defendant would be affirmed as one upon contract.
    Appeal by the plaintiffs from a judgment rendered in their favor and against the defendant, in the Municipal Court of the ■city of Hew York, second district, borough of Manhattan.
    Myers, Goldsmith & Bronner, for appellants.
    Charles T. Duffy, for respondent.
   Freedman, P. J.

The complaint in this action sets forth three causes of action similar in character, and in the court below the plaintiffs recovered a judgment for the amount of each, but they appeal from the judgment in their favor, because, as they claim, they sued in each instance for a conversion and recovered on contract. The three causes of action are so much alike that, collectively, they may be treated for the salce of convenience as one transaction.

At the trial both parties gave evidence. The plaintiffs introduced in evidence some partly written and partly printed papers, signed by the defendant, which showed that the articles sued for were consigned to the defendant at a valuation agreed upon, that the title to them was to remain in the plaintiffs, and that the defendant was to return them within a certain period of time. This evidently did not constitute the entire contract between the parties, and parol testimony was, therefore, admissible to show what the contract really was. The testimony of the plaintiffs’ salesman, who had made the transaction with the defendant, clearly established that the defendant had a right to sell the goods, for his own account, to whomsoever he pleased'and at whatever figure he could obtain.- Upon the plaintiffs’ own showing, therefore, the contract between the parties was that the goods were to be consigned to the defendant, that the latter had the right to sell them, that in the event of sale the agreed valuation should be paid to the plaintiffs, and that, in case of no sale, the title to the goods should remain in the plaintiffs and they should be redelivered to the plaintiffs within the period specified. The plaintiffs gave no evidence that at the time of their demand the goods remained unsold in the possession of the defendant, and consequently they failed to establish a conversion; for a demand for the goods, but not for the money, after the sale was insufficient. Even if the demand had been made for the money, failure to pay to the plaintiffs the value agreed to be paid to them would not have constituted a conversion. And even if no value had been agreed upon as between the plaintiffs and the defendant, failure to account for the proceeds of the sale would not have made the defendant guilty of a conversion, but would have rendered -him liable in an action on contract. Herrmann Furniture & Plumbers’ Cabinet Works v. Hyman, 28 Misc. Rep. 567.

According to the defendant’s version there was no consignment, but an absolute sale of the goods, and the papers signed by him were signed upon the representation by plaintiffs’ salesman, and in the belief by the defendant, that they were orders for the goods. It thus appears that whether the testimony on behalf of the plaintiffs or that given on behalf of the defendant be accepted as true, the defendant was liable only on contract, and inasmuch as the defendant insists on the affirmance of the judgment, and plaintiffs’ complaint is broad enough to sustain the recovery had as one on contract, though the plaintiffs failed to prove the additional allegation relied on to show conversion, the judgment should be affirmed.

MacLean and Leveetbitt, JJ., concur.

Judgment affirmed, with costs.  