
    Renner v. Puritan Stationery Company, Inc., Appellant.
    Argued October 22, 1935.
    Before Keller, P. J., Baldrige, Stadteeld, Parker, James and Rhodes, JJ.
    
      
      Herman Moskowitz, for appellant.
    
      Bussell O. Gourley, for appellee, was not heard.
    November 13, 1935:
   Pee Cueiam,

Judge Tumolillo, of the court below, before whom the case was tried without a jury, filed the following concise opinion:

“This was an action in assumpsit to recover the value of twelve sketches which the plaintiff made and delivered to the defendant under an agreement, whereby the plaintiff was to make up the finished drawings if the defendant decided to use the sketches, and in the event the defendant found no use for the sketches they were to be returned to the plaintiff. The defendant did not order the finished drawings and did not return the sketches. The defendant contends that the action should have been brought in trespass, based on the conversion of the property. But since the sketches were turned over under an express contract, with an express agreement to return them, assumpsit is the [a], proper remedy. The value of the sketches was established by the plaintiff through his own testimony, which was not rebutted by the defendant. Therefore the court found for the plaintiff in the sum of $111.25. The defendant has filed motions for judgment n. o. v. and for a new trial. For the reasons above stated, the court is of the opinion that the defendant’s motions should be refused.”

As there was no evidence in the case—the defendant offered no testimony—that the sketches had been sold by the defendant, the cases cited by the appellant which hold that where there has been a wrongful sale, the damages recoverable in assumpsit are limited to the selling price received, have no application.

The judgment is affirmed on Judge Tumolillo-’s opinion.  