
    John H. Dakin, Respondent, v. Mike Elmore and James Hamilton, Appellants.
    Third Department,
    June 18, 1908.
    Conversion—misleading charge — excessive verdict.
    Where in an action for conversion the real question litigated is whether thé . defendants had delivered the articles to a third party according to plaintiff’s directions, and there is no controversy as to-a demand and failure to deliver to plaintiff, it is error to charge that When the plaintiff asked for the chattels and defendants did not deliver them they were guilty of conversion, and to refuse to charge that a demand and refusal did not establish conversion where at the time of the demand the property was not in the defendants’ possession . or was not in existence.
    Where a complaint demands the value of a chattel with interest and claims no special damage, and the chattel is shown to be worth $45,. a verdict of $209, ■' which includes the usable value of the chattels, is excessive. '
    Appeal by the defendants, Mike. Elmore and another, from a. judgment of the County Court of Schenectady county in favor of the plaintiff, entered in the office of the clerk of said county on the 17th day of March, 1908, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of March, 1908, denying the defendants’ motion for a new trial made upon the minutes.
    
      Edgar T. Brackett [Charles G. Fryer of counsel], for the appellants.
    
      Fenwick & De Voe [Milton E. De Voe of counsel], for the respondent.
   Kellogg, J.:

This action was brought to recover for thé conversion of three Dudgeon flue rollers, a swedgé and caulking tools, which the plaintiff claims to- have loaned to the defendants, and which they after demand made failed to return. The-defendants claim that plaintiff brought two of the flue rollers to their place, saying he was taking them to thé camp of a neighbor the location of' which he did not just know, and lie asked the defendants if they would take them and hold them until the other party called for them, and would also deliver with them one flue roller which the defendants had concededly borrowed from the plaintiff, and the defendants claim that the flue rollers were delivered to a workman from the neighboring camp who called for them. It also appeared that after demand had been ma.de for the rollers and the defendants were unable to ■ find them the defendants said they would pay for them, and thé plaintiff replied he would rather have the rollei’Sj and thereupon the defendants asked .him what sized rollers he wanted and he gave them the sizes. Defendants immediately ordered the: rollers by telegram, and- they arrived by express, and within a few days they . wrote the plaintiff thát the rollers had arrived and were subject to his order, and when a few days after the plaintiff’s attorney called upon them to.make a demand for payment for the rollers and the use of them defendants told him the rollers were there and he might take them, to which he replied they would not accept them as he wanted pay for the time they had them.

The evidence tends too show that the value of the property in question was about $45., The verdict was for $209.06, the county judge having permitted the jury to award the plaintiff the usable value of the flue rollers after the alleged conversion, if they found they had such value, the defendants claiming that under the complaint, no reference being made to usable value, the plaintiff was only entitled to recover the value of the articles, with interest.

Defendants excepted to the charge of the trial judge that as matter of law when the plaintiff asked for the flue rollers and they did not deliver them to him they were guilty of conversion.” The defendants also excepted to the refusal of the court to charge that a demand and refusal did not establish conversion where at the time of the demand the property was not in the possession of the defendants or was not in existence. I think the charge made and the refusal to charge were errors. The real question litigated was not whether there had been a demand and a failure to deliver, which was practically conceded, but whether the defendants had delivered the articles according to directions of the plaintiff and thereby put themselves out-of possession of them. The effect of the charge, therefore, could only be to mislead the jury.

The damages awarded are excessive. The complaint is the ordinary, complaint for conversion, alleging that by failure to deliver the articles plaintiff was damaged $583, for which sum, with interest, he demands judgment. This gave no notice of any claim for special damages, and I do not think the evidence warranted any damage to the plaintiff on account of the alleged conversion over the value of the articles, with interest. The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellants to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellants to abide event.  