
    De Ette Adsit and Charles Augram, Respondents, v. Charles Ehmke, Appellant.
    
      Action for the conversion of lumber — sale to the defendant by one of two owners of his interest therein—proper charge to the jury.
    
    One Augram cut lumber from the land of Adsit, and drew it to the defendant’s saw mill, under an agreement entered into between Augrám and Adsit, by which Augram was to have one-half of the lumber which the timber would yield. • Subsequently the defendant sold a portion of the lumber, and in an action brought against him by Augram and Adsit, upon the theory that he had converted the same, evidence was given tending to show that Augram sold his interest in the logs to the defendant with the knowledge and consent of Adsit.
    
      Sdd, that the defendant was entitled to have the jury charged that, if they should find that he bought the remainder of the logs or lumber of Augram, “ then the plaintiffs cannot recover in this action, even if he has not paid for or settled for them; that this action could be maintained only for goods sold and delivered.”
    Appeal by the defendant, Charles Ehmke, from a judgment of the County Court of Chautauqua county in favor of the plaintiffs, entered in the office of the clerk of the county of Chautauqua on the 14th day of October, 1898, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order bearing ■ date the 10th day of October, 1898, denying the-defendant’s motion for a new trial made upon the minutes.
    In January, 1897, the plaintiffs entered into an agreement between themselves by which the plaintiff Augram agreed to cut certain timber standing upon the farm of the plaintiff Adsit, and to draw the same to the sawmill and pay one-half of the bill for sawing the same into lumber, in consideration of which Augram was to have one-half of the lumber which the timber would yield. Under this agreement Augram cut and drew to the mill of the defendant 9,698 feet of elm logs and 16,275 feet of hemlock logs. The logs were subsequently sawn into lumber by the defendant, who thereupon sold and disposed of a portion thereof, and this action was brought in a court of a justice of the peace to recover the value of the lumber thus disposed of upon the theory that the defendant had converted the same to his own use. A judgment was recovered by the plaintiffs for substantially the full amount claimed by them in their complaint, from which an appeal was taken to the County Court of Chautauqua county, where the case. was retried with the result that the plaintiffs again obtained a verdict, for the amount of their claim, and from the judgment entered thereon, as well as from an order denying the defendant’s motion for a new trial, this appeal is brought.
    
      G. J. Dikeman, for the appellant.
    
      George E. Towne, for the respondents.
   Adams, P. J.:

. Upon the trial in the County Court some evidence was given by the defendant tending to show that the plaintiff Augram sold his. interest in the logs to the defendant, with the knowledge and consent of his co-plaintiff, Adsit; and in view of this evidence it was contended by the defendant that the plaintiff Augram had no interest in the subject-matter of the litigation and, consequently^ ' Could not maintain an action therefor. At the conclusion of his charge the learned trial judge was requested by the defendant’s counsel to instruct the jury: “That if they should find that Ehmke bought the remainder of the logs pr lumber of Augram, that then the plaintiffs cannot recover im this action, even if he has not paid for or settled for them; that this action could be maintained only for goods sold and delivered.” In reply to which request the court stated: “ I decline to charge as requested and give you the exception. If Augram sold to him his interest there is no evidence in the case that he had any authority to sell Miss Adsit’s lumber, and she might in any action of trover and conversion recover for her interest; whether that, would be a joint action is another question.”

This language is somewhat obscure and precisely what meaning the learned trial court intended thereby to convey is involved in some doubt, but we think that the defendant was entitled to have the jury instructed in accordance with this request and that it was error for the court to decline to so charge.

While the evidence in the case perhaps does not establish a copartnership between these plaintiffs as respects the lumber in question, the action was nevertheless brought and sought to be maintained upon the theory that they were jointly interested therein; but it is obvious that if the plaintiff Augram had disposed of his share of the lumber with the knowledge and consent of his co-plaintiff, he had no further interest therein, and consequently was not entitled to maintain this action. It is equally obvious that if such were the case the plaintiffs were not entitled to recover the full value of the lumber which, it is claimed, the defendant liad sold and converted to his own use; and inasmuch as the verdict represents such, value it is impossible to say that the refusal of the court to charge as requested did not, in some measure, influence the action of the jury. We con elude,'therefore, that the error complained of rénders a new trial necessary.

All concurred.

Judgment and order reversed and a new trial ordered, with costs of the appeal to the appellant to abide the event.  