
    SPINELL v. PHILIPSON et al.
    (Supreme Court, Appellate Term.
    May 2, 1905.)
    Conversion—Evidence—Demand.
    Where plaintiff turned over to defendant hats to sell for plaintiff’s account, plaintiff could not maintain an action for conversion. of the hats ■ before a sale, and before any demand for return of the hats.
    Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.
    Action by Philip Spinell against Samuel Philipson and others, doing business as Samuel Philipson Sc Co. From a judgment in favor of plaintiff, defendants appeal. Reversed.
    Argued before SCOTT, LEVENTRITT, and GREENBAUM, JJ-
    Adolph Bloch, for appellants.
    Alex. B. Greenberg, for respondent.
   LEVENTRITT, J.

The plaintiff recovered judgment in an action for conversion. His version of the contract with the defendants ¿vas accepted b.y the justice below, and is amply supported by the record. He had at various times purchased hats from the defendants. At the time of the agreement in question he was indebted to them in the sum of $268.25. Unable to pay in money, he turned over to the defendants a quantity of hats, which, at the prices at which they had been sold to him, represented a value of $381.88. The defendants agreed, to accept enough hats at the prices at which they had been sold to the plaintiff to wipe out the indebtedness of $268,25, and to sell the remainder, amounting at the billed value to $113.63, for the plaintiff’s account, and to turn over to him the proceeds. Without waiting for the sale of these hats to be consummated, and without demanding the return of hats in kind, the plaintiff made demand of the defendants for the sum of $113.63, and, upon their refusal, sued in conversion.

The judgment cannot be sustained. The defendants’ original possession of the.hats valued at $113.63 was rightful. They certainly had a reasonable time within which to sell them. If, for any reason not disclosed on the record, the plaintiff had the right to demand back the' hats in excess of the number necessary to equal in value the amount of the original indebtedness of $268.25, he cannot sue in conversion, because there was no demand for the return of hats. He could not demand the proceeds of the sale of those hats until a sale had actually taken place, and, as the record is barren of any proof of a sale, the demand for money was premature. On his theory, hats of the value of $113.63 were intrusted to the defendants for the purpose of sale. No sale has been had. The lawful posses-3 sion of hats or proceeds could not become tortious until a demand made for hats, or for money after sale had. The judgment must be reversed.

Judgment reversed and new trial ordered, with costs 'to appellant to abide event. AIL concur.  