
    John B. Hicks, Respondent, v. Monarch Cycle Manufacturing Company, Appellant.
    
      Action not in conversion but based on an express contract to, return the property— its value shown by defendants admission.
    
    The complaint in an action alleged that the plaintiff delivered a bicycle and certain models to .the defendant at its request and upon its promise to return such property upon demand; that repeated demands had been made for their return, but that the defendant had failed and refused to comply therewith. Damages were claimed in the sum. of §1,000.
    Upon the trial the plaintiff, for the purpose of showing the damages sustained by him, testified that he refused to deliver the property to the defendant unless a valuation was placed upon it, and that in reply to a question asked by the defendant’s manager concerning its value, he replied: “It cost me over a thousand dollars, and I would not let it go out of my sight unless I had a value placed upon it. He (the manager) says, ‘ that will be all right,’ and then they said they would send it at their own risk and be responsible for it, and they directed it to be crated and sent by express.” He also put in evidence a receipt signed by the defendant’s manager in the following terms: “Reed, one bicycle from J. B. Hicks for examination and return. Value 1000.00.” .
    The plaintiff further showed that it cost him §1,000 to construct the personal property.
    
      Meld, that a verdict of §1,000 in favor of the plaintiff should be sustained;
    That the action was not in conversion, but was based upon the defendant’s express Contract to return the property on demand;
    That the value of the property was a matter of evidence, and that the statement of the defendant’s manager and the receipt issued by him were competent as an admission that the personal property was worth the sum of §1,000.
    Van Brunt, P. J,, dissented. '
    Appeal by the defendant, the Monarch Cycle Manufacturing • Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of July, 1901, upon the verdict of a. jury, and also from an order entered in said clerk’s office on.the 12th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles A. Wendell, for the appellant.
    _Z. A. Wray, for the respondent.
   Patterson, J.:

Upon the trial of this action the plaintiff recovered a verdict for the breach of a contract to return on demand certain personal property which had been delivered into its possession by the plaintiff. The allegations of the complaint are, that at the defendant’s request the articles, a bicycle and models, were delivered to it upon the promise to return them on demand; that demand for their return had been repeatedly made, but that the defendant had failed and refused to return them. Damages were claimed in the sum of §1,000. The defendant denied the allegations of the complaint respecting the delivery and promise to return, but admitted that demand had been made for- such return, and set up affirmatively certain facts relied upon to excuse it from compliance with the demand. Upon the trial of the cause the plaintiff had a verdict for §1,000, and from the judgment entered upon that verdict and from an order denying a motion for a new trial this appeal is taken.

Concerning the special defense set up by way of excuse for not returning the property, no question now arises. The evidence upon that subject was put before the jury and the court expressly charged that if they believed the defendant’s witnesses, then an excuse for not delivering that property had been made out, unless the jury found that the property was received by the defendant at its risk. No exception was taken to the instruction given to the jury. A question, however, arose at the trial relating to the damages sustained by the plaintiff. He testified that in a conversation with the defendant’s manager the latter stated that he would like some of his experts at a factory.in Chicago to see this personal property, and that the defendant would have to send it from the city of New York to Chicago; that the plaintiff replied that he could not let it go unless a valuation was placed upon it, whereupon the defendant’s manager asked at what it was valued, and the reply was made, “ It cost me over a thousand dollars, and I would not let it go out of my sight unless I had a value placed upon it. He (the manager) says, * that will be all right,’ and then they said they would send it at their own risk and be responsible for it, and they directed it to be crated and sent by express.” The defendant’s counsel then moved to strike out that part of the testimony relating to any agreement made as to a value to be placed upon the wheel, on the ground that it is not contained in the complaint, which motion was denied and an exception taken. Subsequently the plaintiff put in evidence a receipt in the following words: “ Reed, one bicycle from j. B. Hicks for examination and return. Value 1000.00.” This was signed "by the manager of the defendant. It was then shown that with the bicycle were sent two models of machinery to increase the velocity of a bicycle without additional labor,, and that it had cost the plaintiff $1,000 to construct the wheel and models. The defendant’s counsel then moved again to strike out testimony relating to any agreed value placed on the wheel at the time of its delivery on the ground that it was not pleaded; that the plaintiff had sued in conversion, and that it was sought to prove an express contract. The action was not in conversion, but was based upon the facts set forth in the complaint, namely, the express contract to return on demand. Upon proof of the failure of the defendant to comply with-the demand, the plaintiff was prima-facie entitled to recover, and the amount of the damages sustained alone remained to be proven. The defendant’s contention is, in substance, that liquidated damages agreed upon by the parties being part of the contract, that part of the contract should have been pleaded. But it is not claimed as matter of fact that the defendant, through" its manager, specially agreed or stipulated to pay $1,000 if the personal property were not returned. The value of the articles was a matter of evidence. The proof offered was of an admission on the part of the defend- ■ ant’s representative that those articles were worth that sum, -and that evidence was given for the purpose of avoiding the necessity of giving any other proof.

The defendant at the trial also offered evidence of an expert as to what it would cost to reproduce such models as were lost, and which had been delivered by the plaintiff to the defendant. That evidence was objected to and excluded and an exception was taken.

It related only to the models and not to the other property. The ruling was proper, for the evidence sought- to be given did not . relate to any rule of damage applicable in the case. No other questions are raised on the record and the judgment and order should be affirmed, with costs.

O’Bribn and Laughlin, JL, concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J.

(dissenting):

I dissent. I do not think that there was sufficient evidence to show that the damages were liquidated; nor that the facts were such that the rule as to liquidated damages would apply.

Judgment and order affirmed, with costs.  