
    The Mechanics and Traders’ Bank of Buffalo, Appellant, v. The Farmers and Mechanics’ National Bank of Buffalo et al., Respondents.
    (Argued January 25, 1875;
    decided February 9, 1875.)
    Plaintiff held the bill of lading for a quantity of wheat, shipped from M. to B., as security for a draft discounted by it. Upon the arrival of the wheat in B. it was stored by plaintiff’s agent, W., who took a receipt in
    , his own name. W. made a parol contract for a sale of the wheat to N. to be delivered on payment. To expedite the movement of the wheat, but without intent to part with the title or possession, W. gave to N. an order, directing a delivery of the wheat to the E. R. Co. N. had previously made arrangements with that company for the transportation of the wheat to N. Y., and on receipt the company delivered a bill of lading for the wheat to N., and shipped it. N. upon the strength of, and upon delivery'of the bill of lading, procured a draft to be discounted by defendant, the F. and M. Nat. Bank. In an action for conversion of the wheat, held, that the order simply authorized a delivery of the wheat to theE. R. Co. for W., and did not authorize the delivery of the bill of lading to N. or the shipment without further directions; that the delivery of the order to N. did not make the void parol contract binding, or affect plaintiff’s title; nor was there any neglect on the part of W. which affected such title, or plaintiff’s right of action to recover the wheat; and that defendant acquired no title by the bill of lading; also, that the taking of the receipt by W. in his own name, being without authority, did not affect plaintiff’s title.
    It was stipulated by defendants on the trial that there had been a' demana and refusal to deliver, and that defendants claimed the right to hold the grain. Held,, that this sufficiently showed a conversion; that plaintiff was not required at the time of making demand to show evidence of its claim; and if so required that the stipulation was a waiver thereof.
    The factors’ act (chap. 179, Laws of 1850) has no application to such a case, either in favor of the F. and M. Nat. Bank or the consignees named in the bill of lading delivered to N.; the latter not having accepted the draft drawn upon them.
    Also, held, that plaintiff was not limited in its recovery to the amount of its advances; as the defendants were wrong-doers it was entitled to recover the full value.
    Plaintiff was entitled to recover the value of the wheat at the time of the conversion, with interest.
    
      Bawls v. Beshler (3 Keyes, 572); Bows v. Oreme (24 N. Y., 688) distin guished.
    
      Appeal from order of the General Term of the Supreme Court in the fourth judicial department, setting aside a verdict in favor of plaintiff and granting a new trial. (Reported below, 2 N. Y. S. C. [T. & C.], 395.)
    This action was brought for the conversion of 15,000 bushels of wheat.
    The wheat in question was shipped by George I. Jones & Co., at Milwaukie, to the care of the owner, S. IL Worthington, Buffalo, for account of D. Ferguson, cashier. The bill of lading was delivered to the Wisconsin Fire and Marine Bank, of which Ferguson was cashier, upon discount of a draft drawn by the shippers upon Worthington, payable to the order of Ferguson. The draft and bill of lading were forwarded, by said bank, to plaintiff for collection of the draft. In order to meet the draft Worthington made his note, which was discounted by plaintiff and proceeds applied for that purpose, Worthington indorsing and delivering the bill of lading as security therefor. Worthington and plaintiff had had other transactions of a similar nature, and by the course of business it was the duty of Worthington, upon arrival of the grain, to send the vessel to an elevator and have the vessel unloaded and take a warehouse receipt in plaintiff’s name. Upon his subsequently contracting to sell he would get from plaintiff a written order for the grain. Upon the arrival of this grain the vessel was sent, by Worthington’s directions, to the Miagara elevator, where it was unloaded, and, without the knowledge or assent of the plaintiff, a receipt was taken in the name of Worthington. Previous to the arrival of the grain at Buffalo Worthington had made an oral contract for the sale of the wheat to one Mims. Mothing was paid thereon. On the day the grain arrived, Mr. Worthington testified (and his testimony was uncontradicted), that Mims came to his office and asked him if the propeller bad been sent to the Miagara elevator; Worthington replied that it had. Mims then said: “ I cannot pay you for that wheat to-day, but give it to the Erie Railway Company to your own order and to-morrow I will take it and pay you for it.”
    
      Thereupon Worthington drew the following order:
    Buffalo, Nov. 17, 1871.
    “Prop. Mohawk or Niagara Elevator.' Deliver to Erie Railroad fifteen thousand bushels Mil. wheat, more or less, subject to-order.
    15,000 bushels. S. K. Wobthington.”
    This order Worthington delivered to Nims.
    Worthington also testified that the order was drawn for delivery to the Erie road, because he “ did not want to give it to Nims. It was not the intention to give the-property to Nims at all. His name is not inserted in the order. He did not ask me to.”
    There was also evidence pro and eon as to whether the words “subject to--order,” contained in the order, were canceled by Worthington by a pen mark, or whether the blank between “ to ” and “ order ” only was filled by the pen mark, the testimony on the part of the defendants tending to show the former, and that on the part of the plaintiff to establish the latter.
    Nims having received the order, delivered it to Mr. Cald-Avell, the agent of the New York and Erie Bailway Company, and thereupon Caldwell, without any authority from Worthington so to do, delivered to Nims a raihvay receipt or bill of lading, dated November 17, 1871, expressing the receipt for carriage of 15,000 bushels Milwaukee wheat from O. L. Nims, agent, marked “ O. L. Nims, Ag’t, care of J. M. Fiske & Co., New York, subject to the order of the Farmers and Mechanics’ Bank of Buffalo.” This receipt or bill of lading, Nims at once sent to the Farmers and Mechanics’ National Bank of Buffalo (one of the defendants), and upon the security thereof, obtained a discount of a draft draAvn on J. M. Fiske & Co. (the other defendants), for $18,750. This draft was not accepted by the drawees. The railway company loaded the grain into its cars and carried it to New York. Neither Worthington nor the plaintiff knew any thing of the issue of this bill of lading, or of the shipment of the property until after it had left for New York. On the eighteenth Nims went to Worthington on ’Change, and said he “ couldn’t make his arrangement to pay him the money as he had agreed to.” Worthington replied that “ he had relied on it and wanted it very much.” The next day was Sunday. On Monday following, Nims and Worthington again met, and Nims said, “ send in your bill about eleven o’clock, and we will be ready for you.” The bill was sent in, but no payment made, and on or about that day Nims failed.
    It was stipulated upon the trial that the plaintiff, on the tenth of December, demanded the grain of the defendants, which was then in their possession in New York, but they refused to give it up, and claimed the right to hold it. In the same month it was sold by J. M. Fiske & Co., for account of the Farmers and Mechanics’ National Bank.
    The evidence as to value was in substance as stated in the charge.
    The court charged among other things:
    “ If you believe from all the facts and circumstances in the case that the' intention of Worthington was, as stated by him, that he should retain the title and control of the property until Nims paid for it, then the plaintiff is entitled to recover.
    
      “ If, on the other hand, you are satisfied that this order was passed over and the wheat delivered, on the part of Worthington, with the design of fulfilling the original agreement between the parties, then the defendant, of course, is entitled to your verdict.
    
      “ If you find for the plaintiff, you will find for the entire value of the property; for, as the case stands now, the plaintiff is entitled to recover the entire proceeds of this property, the object of the law being not to split up or divide the demands.. If there was no transfer of Mr. Worthington’s interest at all, then the defendant is entitled to nothing out of this property, and the recovery should be for the plaintiff for the full amount of the property, which was 14,943 bushels and twelve pounds of wheat; which, according to Mr. Frank Fiske’s testimony, was worth, at the first of December, one dollar and forty-one cents a bushel. The wheat was sold in the spring of the year for about one dollar and seventy-one cents a bushel, and there is to be deducted from that about twenty to twenty-three cents a bushel for transportation, carrying it through the winter, and commission for selling, which would leave the net value of the wheat about one dollar and thirty-nine cents per bushel, which, if you find correct, you will adopt as the value of the property; and the plaintiff will be entitled to recover the price, with interest from the month of May, 1872, to the time of the rendition of your verdict.” •
    The defendant excepted to that part of the charge, “ that the plaintiff was entitled to recover if the jury believed that the arrangement for the delivery of the wheat to the railway company was as it is stated to have been by Worthington.”
    Also to the charge, “ that if plaintiff recovered it was entitled to recover the full value of the wheat, even if that exceeded the plaintiff’s advances.”
    Also, excepted to the charge, “ that the plaintiff could recover the highest price of the wheat preceding the time of the trial.”
    The jury rendered a verdict of $23,793.64 for the plaintiff.
    And the court thereupon directed the case and exceptions taken to be heard in the first instance at the General Term.
    
      Sherman S. Rogers for the appellant.
    Plaintiff’s property in the wheat was clearly established. (Bk. of Rochester v. Jones, 4 Comst., 497; City Bk. of Rome v. R., W. and 0. R. R. Co., 44 N. Y., 136.) The sale to Nims was void by the statute of frauds. (2 Kent, 504, m. p.; Browne Stat. Frauds, § 317; 2 Pars. Con., 322 [333] ; Brand v. Focht, 3 Keyes, 409; Shindler v. Houston, 1 Comst., 261; Phillips v. Bristolli, 2 B. & C., 511; Smith v. Surman, 9 id., 561.) The delivery of the bill of lading to plaintiff was a symbolical delivery of the grain. (Bk. of Rochester v. Jones, 4 Comst., 507 ; City Bk. of Rome v. R., W. and O. R. R. Co., 44 N. Y., 130.) Plaintiff has done nothing to estop it from asserting its right in the grain as against defendants. (Ballard v. Burgett, 40 N. Y., 314; Spaights v. Hawley, 39 id., 441; Austin v. Dye, 46 id., 500 ; Cook v. Adams, 1 Bosw., 497; Wilson v. Nason, 4 id., 155 ; Covill v. Hill, 4 Denio, 323.) The factors’ act (chap. 179, Laws of 1850) does not apply to this case. (Covill v. Hill, 2 Seld., 374; S. C., 4 Denio, 323 ; 1 Comst., 522; Wilson v. Nason, 4 Bosw., 155; Stevens v. Wilson, 6 Hill, 512; S. C., 3 Denio, 472.) No error was committed by the court on the question of damages of which defendants can complain. (Scott v. Rogers, 31 N. Y., 676, 683; Burt v. Dutcher, 34 id., 493; Markham v. Jaudon, 41 id., 235, 245 ; Lobdell v. Stowell, 51 id., 70 ; Baker v. Drake, 53 id., 211.)
    
      Wm. H. Greene for the respondents.
    The delivery of the order to Nims was sufficient to perfect the sale within the statute of frauds. (Rawles v. Deshler, 3 Keyes, 572 ; Dows v. Green, 24 N. Y., 645; Zwinger v. Samuda, 7 Taunt., 265 ; Harman v. Anderson, 2 Camp., 243; Lucas v. Dorien, 7 Taunt., 276; Wilkes v. Fontaine, 5 J. R., 335 ; Ludlow v. Bowne, 1 id., 16; Ellis v. Hunt, 3 T. R., 469 ; Oppenheim v. Russell, 3 B. & P., 48; Dutton v. Solmonson, id., 582.) Plaintiff shows no such property in the wheat as entitles it to maintain this action. (Chitty on Pldgs., 148; 2 Saund., 47 a, note 1; Hotchkiss v. Mc Vickar, 12 J. R., 403; Sheldon v. Soper, 14 id., 352; Heyle v. Burling, 1 Cai., 14; Dillenbeck v. Jerome, 7 Cow., 294.) Plaintiff’s demand was insufficient and the defendants’ refusal to deliver does not prove an intention to convert plaintiff’s property. (Hill v. Covill, 1 N. Y., 522; 1 R. S., 774, § 1; Laws of 1858, chap. 326, § 5.) Plaintiff cannot recover more than the amount of its advances. (Dows v. Green, 24 N. Y., 638.) Defendant is entitled to its lien for the amount of the draft it discounted at the request and for the use of Nims. (Grove v. Brien, 8 How. [U. S.], 429 ; Rawles v. Deshler, 3 Keyes, 572; Lickbarrow v. Mason, 4 T. R., 63; Hollingsworth v. Napier, 3 Cai., 182; Bk. of Rochester v. Jones, 4 N. Y., 497; Dows v. Green, 32 Barb., 490; Bryan v. Mix
      , 4 M. & W., 789 ; Croaker v. Crocker, 31 N. Y., 507; Glynn v. Baker, 15 East, 509 ; Kuckein v. Wilson, 4 B. & A., 443 ; Guichard v. Morgan, 4 Moore, 436; Gill v. Kyner, 5 id., 303; Duelos v. Hyland, id., 518 ; Steirheld v. Holden, 4 B. 6 C., 5 ; Jackson v. Clark, 1 W. & J., 210; Evams v. Truroman, 1 M. & R., 10; Taylor v. Kymer', 3 B. & A., 320; Thompson v. Farmer, 1 M. & M., 448; Fletcher v. Heath, 7 B. & C., 517; Brandy v. Allen, D. & L., 29; Jenkins v. Osborne, 8 Sc. N. R., 507; 7 M. & G., 678; Van Casteel v. Booker, 2 Exch., 691; Phillips v. Heith, 6 M. & W., 572; Hatfield v. Phillips, 9 id., 647; 14 id., 665; Bonzi v. Stewart, 4 M. & G., 295; Navalshaw v. Browrigg, 1 Sim. [N. S.], 573; 21 L. J. Ch.; 908; Fuentes v. Montes, 13 L. T. R. [N. S.], 25 ; Monk v. Whittenburg, 2 B. & Ad., 484 ; Kingsford v. Merry, 1 H. & N., 503; Higgins v. Burton, 26 L. J. Ex., 342; Sheppard v. U. Bk. of London, 7 H. & N., 661; Paley on Ag.,218-221; 2 Black., 449; Wins, on Per. Prop., 391; Case of Market Overt, 5 Rep., 836; Lyons v. Depass, 11 Ad. & El., 326; Peer v. Humphrey, 2 id., 495; White v. Spittengen, 13 M. & W., 603; Stone v. March, 6 B. & C., 551, 564; 2 Wms. Saun., 47 b, n. [p.) ;. Williams v. Barton, 3 Bing., 140.)
   Miller, J.

Upon the trial of this case at the Circuit, the defendants’ cou'nsel excepted to that part of the charge of the judge to the jury, to the effect that the plaintiff was entitled to recover if the jury believed that the arrangement for the delivery of the wheat to the railway company was as it is stated to. have been by Worthington. Assuming that the exception covered a portion of the charge as made, the principal question in the case arises, I think, upon this exception. A proper consideration of this question involves the inquiry as to the effect of the order made by Worthington by which it is claimed he parted with the plaintiff’s claim to the grain.

The evidence showed that the wheat in question was purchased at Milwaukie for Worthington, and paid for by a draft on Worthington, payable to the order of D. Ferguson, cashier. This draft together with the bill of lading, in which it was stated that it was on account of D. Ferguson, cashier, and to the care of Worthington, and a policy of insurance upon the same, was sent to the plaintiff for the purpose of having the draft collected. To meet this draft Worthingtou made his note, payable to the order of the plaintiffs president, at the bank, in thirty days, which was discounted at the bank, which at the same time received from Worthington an indorsement of the bill of lading and the insurance policy as security for the loan. The delivery of the bill of lading to the plaintiff was a good symbolical delivery of the grain, and the plaintiff thereby acquired a lien upon it or title to it, and was fully authorized to hold it until the loan was paid. (Bank of Rochester v. Jones, 4 Comst., 497, 507; City Bank v. Rome, Watertown and Ogdensburgh R. R. Co., 44 N. Y., 136.) The judge ruled at the trial that the plaintiff was a mortgagee of the grain; but whether the plaintiff held it as mortgagee, pledgee, or by any other title, is not material so long as the title or the right to the possession was vested in the plaintiff. To all intents and purposes the plaintiff’s property in the wheat was clearly established and beyond any question.

The plaintiff being thus entitled to the wheat, it remains to be considered whether it did any act by its officers or by means of its authorized agent, which has deprived it of the title which it had acquired. The bank itself did no act, and if any was committed which impaired the plaintiff’s ownership of the wheat, it was done by means of Worthington, who, by an arrangement or understanding when the note was dis counted, was to take charge of the cargo upon its arrival and place it in store subject to the order of the plaintiff, as seen rity for the draft which had been discounted. Worthington did place it in store accordingly, and took a receipt -for it subject to his own order ; which was contrary to the arrangement with, and without the knowledge*»!, the plaintiff. He had an undoubted right to exercise a control over the disposition of the wheat, for the benefit of the plaintiff; and had he sold it absolutely to any party, without notice of the rights of the bank, the plaintiff would have no ground to complain, as he would be acting entirely within the scope of his authority, as the plaintiff’s agent, in so doing. I think he did not make any such disposition of the grain as depri ved the plaintiff of its title thereto. The oral agreement which he had made with Nims was without any direct authority from the plaintiff; but assuming that such authority existed in Worthington as plaintiff’s agent, the contract with Nims not being in writing, nor any money paid or property delivered, it was void within the statute of frauds. It vested no title whatever in Nims, individually or otherwise. Neither party was lawfully bound by it, and each of them would be justified in refusing to perform it. Nor, in my opinion, did Nims acquire any right to the grain by the mere delivery of the order by Worthington to him. The order, upon its face, conferred no right upon Nims to receive the grain, and no such construction can legitimately be placed upon it. The true meaning and effect of the order was," that the wheat should be delivered to the Erie ¡Railway Company, for Worthington himself. This did not authorize Nims or any one else to receive a bill of lading from'the company, or the company to transport the same, without further directions. The fact that Nims had possession of the order, of itself, conferred no right to take out a bill of lading in his own name. If it had been delivered to a clerk or an entire stranger and handed to the company, neither of them would be justified in giving him a bill of lading and transporting the wheat for his benefit. Or if, after the receipt had been delivered, Nims had refused to pay before he had received a bill of lading, he would not be liable, because he delivered the order without some extrinsic evidence to establish a sale.

There was a conflict in the evidence as to whether the blank between the words “ to ” and “ order ” had been filled up with a black line from a pen; but assuming, as is claimed, that the words “ subject to-order ” were erased, it made no-difference, and the legal effect was the same. In this form it was a notice to the railway company, to whose freight agent it was delivered, to hold the wheat until Worthington, who had signed the order, gave directions in regard to it. Certainly, it would not bear the interpretation that it was subject to Nims’ order, for his name was not mentioned. It did not direct that the grain should be shipped in Kims’ name or in any other name, except Worthington’s, or in any way convey the idea that Nims was the owner of the grain, or that any other person but Worthington, who had signed the order, had a right to control it.

We have been referred to a class of cases which, it is claimed, hold that the order in question was sufficient to authorize a delivery of the wheat. I think they are not analogous, and in no way decisive upon the question of delivery. In Rawls v. Deshler (3 Keyes, 512), the order was to deliver to the purchaser of the grain or order, and it was delivered on the production of the order, and shipped by him in his name. The words “subject to order until paid for” may well be held to be evidence of an agreement between Deshler, who made the draft, and Griffin, who purchased the grain, that Griffin should hold it subject to Deshler’s order until payment should be made. The order simply transferred the grain, subject to the lien of Deshler, and the principle decided has no application.

In Dows v. Greene (24 N. Y., 638), the seller of the grain made and delivered to Bloss, the agent of the buyer, Mack, a bill of lading for “ account J. F. Mack, care of Dows & Gary.” The consignees, Dows & Cary, advanced money, in good faith, on the bill, and it was held that they had a lien under the factors’ act, as well as upon equitable grounds. This is not applicable to the case at bar, and no case is cited which holds the doctrine that the'delivery of an order of this kind confers authority upon a person not named in it to receive a bill of lading in his own name, to the detriment of the real owner.

The defendants’ counsel claims that the railway company had the wheat for Kims, as his bailee, as soon as it was placed in the cars, and not for Worthington, between whom and the Erie Bail way Company there was no privity of contract. In this, I think, he is mistaken, as the order itself, on its face, showed that Worthington was in possession and had the control of the wheat. The authorities cited to show the legal effect upon the possession of a delivery order have no application to a case where the order itself shows .who is entitled to control the property, as was the case here. Conceding the rule, as claimed by the learned counsel for the defendants, that delivery to the carrier is constructive delivery to the vendee (see Wilkes v. Fontaine, 5 J. R., 335; Ludlow v. Bowne, 1 id., 16; Ellis v. Hunt, 3 Term, 464), it does not affect this case, unless Nims was the actual vendee, which was a disputed qúestion of fact upon the trial, and submitted to the consideration of the jury by the judge.

It is plainly manifest, I think, that there was no delivery of the grain to Nims by means of the order referred to, within the statute of frauds, which divested the plaintiff of its title. Nor does the .fact proven on the trial, that Nims had previously made arrangements with the Erie Railway Company for the tranportation of the grain, help the plaintiff’s case. The question of delivery, as between Worthington and Nims, depends upon the arrangement between them, and in no respect upon the knowledge which any third party had of the-, intention- of one of them, for if such was the case, it, might well be that an innocent party would be deprived of his rights by the secret arrangement to dispose of property fraudulently obtained.

The question whether Worthington had made an arrangement to part with the possession of the property, or intended to retain-the title and control of it until Nims paid for it, depended upon facts proved upon the trial in connection with the order. Worthington testified that he did-not make any such, arrangement, and did not mean to part with the title or possession; and there is a conflict in the testimony as to some of the leading facts bearing upon this question, which it was eminently proper to submit to the consideration of the jury, as was done in the charge. If the construction placed upon the order is correct, then it cannot be claimed that Worthington, by his own act and fault, had clothed Nims with the possession and apparent title to the wheat, so that he was enabled to obtain the wheat, place it into the hands of the carrier, and secure a bill of lading, by means of which the money was obtained of the Farmers and Mechanics’ National Bank. Nor do I think there was any neglect upon the part of Worthington, which interfered with the title of the plaintiff to the grain, and the right to maintain this action. It follows from the views expressed, that there was no error in that portion of the charge, and that the exception is not well taken.

At the close of the plaintiff’s testimony, the defendants’ counsel moved for nonsuit, upon two grounds: First, that the plaintiff had no property in the wheat; second, that the demand was not accompanied with any evidence of the plaintiff’s right of possession. As to the first ground, we have already seen that the wheat was delivered to the plaintiff, by the delivery of the bill of lading, and it thereby acquired a claim to the wheat, which entitled it to maintain an action for its conversion. The possession of the wheat was in the plaintiff, when it received the bill of lading, and Worthington merely acted as the plaintiff’s agent in making the sale of it. The receipt taken for the wheat by Worthington, in his own name, was wúthont authority and did not divest the plaintiff of the title which had been lawfully acquired. The demand of the wheat and refusal of the defendants to deliver the same, was sufficient to show a conversion.

It was stipulated on the trial that there had been such a demand and refusal, and that the defendants claimed the right to hold the same. This embraced every thing necessary to establish a lawful demand and refusal, and the plaintiff was not bound at the time to show evidence of its claim. If it was so bound, it was waived by the stipulation read upon the trial.

The factors’ act (Sess. Laws of 1850, chap. 179), so called, has, I think, no application to a case like the one at bar. I concur with the opinion of the General Term, that this act only applies in favor of the consignees named in the hill of lading. The Farmers and Mechanics’ Bank was not a factor or consignee of Nims, and as Fiske & Co., the consignees, did not accept the draft drawn upon them to pay for the wheat, they had no claim by means of the consignment. In the case of Dows v. Green (32 Barb., 490; on appeal, 24 N. Y., 638), which is relied upon, 'the plaintiffs were the consignees named in the bill of lading. But there are other reasons, it appears to me, why the factors’ act should have no application in this case. The grain was not, according to the verdict of the jury, shipped in the name of Nims with the consent of Worthington or of the plaintiff. Nims was not the factor or agent of either of them; had no authority to receive the bill of lading, and only obtained it by an act which wras tortious and unlawful. Nor was the Erie Railway Company intrusted with the possession of the wheat for the purpose of sale or security for advances within the third section of the act in question. In no aspect of the case can the defendants be brought within the provisions of said act.

The point is not well taken, that the plaintiff cannot recover more than the amount of its advances. As the defendants were wrong-doers the plaintiff was entitled to recover for the full value of the wheat, and, if a recovery was had, liable to account to the owner, whoever it might be, for whatever remained over and above the plaintiff’s advances.

It is also insisted that the damages cannot exceed the value of the wheat at the time of the conversion, with the interest upon the same, and that the judge erred in refusing to charge, as requested, to the above effect. At the time of the trial it was supposed that the rule stated prevailed, hut recent decisions of this court have corrected that impression, and explained and qualified the cases which seemed to justify the ruling at the Circuit. The rule is, that, in the absence of special circumstances, the value at the time of the conversion, with interest, furnishes the rule of compensation. (Baker v. Drake, 53 N. Y., 211; Ormsby v. Vermont Copper Mining Co., 56 N. Y., 623.) The request to charge, therefore, was right, and the judge should have charged accordingly. This error may he corrected by directing that the judgment be modified in this respect, and. does not-necessarily lead to a reversal of the judgment entered on the verdict and to a new trial.

There is no ground for claiming that nothing can be recovered beyond the proceeds of the sale, and no error was committed by refusing to charge accordingly.

The discussion had embraces all the questions raised upon the trial by the requests to charge and otherwise which it is material to consider; and as no error is apparent, except in the rule of damages laid down, the order of the General Term must be reversed and judgment ordered on the verdict if plaintiff stipulates to deduct from the verdict $1,574.44, the difference between the value of the wheat allowed upon the trial and the value of the wheat at the time of the conversion and the interest thereon from that time to the time of the trial, and neither party in that event to recover costs in this court as against the other. If the plaintiff does not * stipulate within thirty days then the order of the General Term must be affirmed and judgment absolute ordered for the defendants, with costs.

All concur.

Ordered accordingly.  