Heilbrunn v. Seh ( 1910 )

SEABURY, J.

The plaintiff has recovered a judgment against the defendant upon the theory that the defendant, while acting in a fiduciary capacity, converted the proceeds of certain cattle which the defendant agreed to sell for the plaintiff. The complaint alleges that the defendant sold and delivered the cattle for $2,402.51, but does not allege that the sale was for cash, or that the. defendant ever received the proceeds of the sale. Although the complaint did not state facts sufficient to constitute- a cause of action, no motion to dismiss the complaint on this ground was made.

The evidence offered was that of an interested witness and was not clear or free from contradiction. The only evidence of a conversion consisted of an alleged admission made by the defendant to the plaintiff. Even if we assume that the proof coming from an interested witness established a prima facie case, it was error to direct a verdict for the plaintiff, in view of the defendant’s request to go to the jury upon the facts.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.