
    Albert G. Wanier, Respondent, v. Truscott Boat Manufacturing Company, Appellant.
    Second Department,
    March 31, 1910.
    Conversion — sale of boat pursuant to agreement — when action does not lie — money had and received.
    Where, a contract for the sale of a boat required the vendor’s agent to sell a boat then owned by the vendee, the proceeds to be used-in part payment for the new boat, and he did so, the vendee cannot maintain an action for conversion although the vendor did not deliver the new boat as agreed. This, because the sale of the old boat was made at its owner’s request.
    
      It seems, however, that if the proceeds of the. sale came into the hands of the defendant or its agent, it could be recovered in an action for money had and ■ received.
    Hirschberq, P. J., dissented.
    
      Appeal by the defendant, the Truseott Boat Manufacturing Company, from a judgment of the Municipal Court in favor of the plaintiff rendered on the 7th day of June, 1909.
    
      William L. Marshall, for the appellant.
    
      William Warren Bryan [Leonard J. Obermeyer with him on the brief], for the respondent.
   Burr, J.:

On July 10, 1904, plaintiff entered into a contract with a.concern doing business at Staten Island under the name of White Craft and Power Company to deliver to him a gasoline launch known as a Truseott motor boat. Delivery was to be made on or a^out July 31, 1904. The agreed price was $345. At about the same time plaintiff delivered to Mr. Ogden, the manager of said company, a motor boat belonging to him known as a Bloomstrom boat. Ho tender of delivery of the Truseott boat was made until toward the close of the boating season and about September 9,1904. Plaintiff refused to accept the boat at that time, and no claim is made that he was bound to do so. Thereafter plaintiff made a demand upon defendant to return to him his Bloomstrom boat. This demand was not complied with, and thereupon this action was begun to recover from defendant the sum of $150 damages for conversion of the boat. It is unnecessary for us to decide whether White Craft and Power Company were the agents of defendant, so that it was bound by the agreement made with Ogden. If such agency be conceded, and the scope thereof, this action cannot be maintained. Plaintiff’s evidence is contradictory. At one time he claimed that Ogden agreed to take his boat for $150 in part payment of the Trnscott boat, and at another time that he agreed to sell it on plaintiff’s account for not less than that sum. There is no evidence that plaintiff’s Bloomstrom boat ever came into the actual possession of defendant. There is a suggestion in a letter put in evidence by plaintiff that it had been sold by the White Craft and Power Com-pany. That is-the only evidence as to what became of it after it was sent to the yard of said company. If the White Craft and Power Company sold plaintiff’s boat, as it appears that it did, this does not constitute conversion, for that was the very thing which plaintiff requested it to do. If the proceeds of the sale came into the hands of defendant, or even of its duly authorized agent, as the contract for the sale of the Truscott boat fell through, an action for money had and received on account of the purchase price might lie, or perhaps, after proper demand, an action for the conversion of such moneys. -This is not such an action. It is an action for the-conversion of the boat alone.

The judgment of the Municipal Court appealed from must be reversed and a. new trial ordered, costs to abide the event.

Jenks," Thomas and Carr, JJ., concurred; TIiíísohberg, P. J., dissented.

Judgment of the Municipal Court reversed and new trial ordered,, costs to abide 'the event.  