
    Pacific Coast Borax Company, Respondent, v. Vechten Waring, Appellant.
    Second Department,
    October 9, 1908.
    Sale — when action is in affirmance of contract and not for breach — conversion by seller refusing to deliver goods after recovery of contract price.
    A complaint which alleges that the plaintiff printed certain folders for the defendant on his order at an agreed price; that the defendant refused to accept the same or any part thereof and failed and neglected to pay the contract price and that the plaintiff was and now is ready and able to perform all the obligations of the order on his part to he performed and has so notified the defendant, states a cause of action affirming the contract rather than an action for a breach thereof.
    •Hence when the seller recovered'the purchase price in an action under such complaint, the title to the folders passed to the buyer, and the seller by subsequently refusing to deliver the same on the demand of the buyer, became liable for the full value thereof in an action for conversion.
    . Appeal by the defendant, Vechten Waring, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 27th day of January, 1908, upon the verdict of a jury rendered by direction, of the court, and also from an order entered in said clerk’s office on the 27th day of .January, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Herbert H. Gibbs, for the appellant.
    
      Godfrey Goldmark, for the respondent.
   Woodward, J.:

On the 23d day of July, 1906, the plaintiff in this action entered into a contract in writing with the defendant, for the printing of 1,100,000 eight-page folders at the price of forty-four cents per 1,000. These the defendant undertook to deliver upon the sliip- . ping orders of the plaintiff. The plaintiff refused to accept the work' when completed, alleging defects in the same, and the defendant in this action brought an action in the Municipal Court of the city of New York against the plaintiff here, in which action the defendant recovered a judgment for $484, with costs, and this judgment the plaintiff subsequently paid, and then demanded the delivery of' the printed matter. The defendant refused ' to deliver the folders, and this action was brought to recover damages for the conversion of the same. The plaintiff has judgment for the value of the goods as fixed by the Municipal Court judgment, and the defendant appeals, from the judgment and from the order denying a motion for a new trial.

The theory of. the defendant, upon this appeal, is that the- judgment of the Municipal Court was founded upon an action for breach- of contract, rather than for the purchase price of the folders, and that title never passed to the plaintiff in such manner as to give rise to a cause of action for conversion. This theory was presented at the trial,'but the learned court held, very properly, we believe, that the Municipal Court judgment operated to confirm title in the plaintiff and that it was entitled to the delivery of the folders upon the payment of the judgment. While the defendant invokes a good deal of technical law in support of his theory, the obvious justice of the judgment now under consideration cannot be mistaken, and appellate courts are not astute in discovering means of overturning judgments thus circumstanced. While it is true that in some respects the pleadings in the Municipal Court would suggest that the action was one for breach of contract, we are clearly of opinion that when the facts are considered it must appear that the spirit of the action was one for the recovery of the purchase price of the folders. It is to be remembered that the folders were printed for the use of the plaintiff, a corporation, exploiting its goods; they were absolutely valueless for any other corporation or individual, for they were designed to advertise the goods of the plaintiff, and obviously they had no value except for that purpose, unless it might be for the trifling valúe as old paper. The complaint in that action alleged the printing of the folders at the order of the defendant between the 23d day of July and the 25th day of September, 1906, and the failure of the defendant to furnish the shipping orders; it alleged that on the- 25th day of September, 1906, the defendant refused to accept the folders or any part of the same ; that it had failed, neglected and refused to pay the plaintiff the said sum of forty-four cents per thousand, and that “ plaintiff is now and since July 23, 1906, lias been ready,, willing and able to perform all of the obligations mentioned in said order on his part to be performed, and has so notified the defendant.” The complaint was verified in November, 1906, and the plaintiff alleged that he was now ready, willing and able to' perform all his obligations under the order for the printing, which included delivery of the folders if requested or if furnished with the shipping orders, and the demand for judgment was for $484, with interest thereon from the 25th day of September, 1906. It will be noticed that the plaintiff sued, not for unliquidated damages, but for the exact contract price of the folders, demanding interest upon the exact amount from the very day that he claims he was ready to deliver the folders. It seems to us that in view of the fact that the folders were of no value to the plaintiff in that action; that he alleged his willingness and ability to perform his contract in November, and that his demand for judgment was as of a liquidated claim, he is hardly in a position to assert that that action was for a breach of contract or that the satisfaction of the judgment did not operate to vest a complete property right in the folders in the plaintiff in this action. The Municipal Court certainly was justified in assuming that it was merely holding the defendant liable for the purchase price of the goods; all the relief the plaintiff asked for was the purchase price, after an averment -that he was ready, willing and able to perform now — at the very moment of bringing the matter to the bar of the court for adjudication.

If we are right in this view of the judgment of the Municipal Court, it follows that the judgment in the case at bar, holding the defendant liable for the conversion of the folders, is fully justified.

The judgment and order appealed from should be affirmed, with costs.

Jenks, Hooker, Gaynor and Rich, JJ., concurred.

Judgment and order affirmed, with costs.  