Dunlop v. Whitlock ( 1825 )

Edwards, J.

The rule, as laid down in the case cited by the defendant’s counsel, is certainly correct. There the proof was full that he had sold the goods, and the money consequently in his hands, was for the use of the plaintiff, and could only be recovered under that count. But, here, there is no certain evidence of any sale by the defendants. There is, on the contrary, room to infer that they have converted these goods to their own use. I shall leave that fact to the jury, and shall rule that if the defendants, instead of selling the goods, have converted them to their own use, they have become purchasers at the election of the plaintiff, and consequently that they are entitled to recover on the count for goods sold.

The case went to the jury under this charge, and they found for the plaintiff.

Van Vechten and Slosson, for plaintiff.

Anthon, for defendants.