Citation Numbers: 1 Thomp. & Cook 206
Judges: Parker
Filed Date: 6/15/1873
Status: Precedential
Modified Date: 1/13/2023
This action is trover for a brick press and fixtures used in the manufacture of brick.
The answer denies the conversion alleged. The cause was referred, and tried before the referee, who found for the plaintiff.
From the judgment entered upon the referee’s report the defendant appeals.
The following facts indisputably appear: Defendant had a brick yard at or near Saratoga Springs. Plaintiff, in the summer of 1870, owned a brick press, which, on learning that defendant wished to purchase one, he took to defendant’s brick yard to sell to him, and, defendant being absent, he left the press there. He soon after met defendant and talked with him about his buying it. Defendant replied that he had been absent and had not seen it, that on going home he would determine whether he wanted it, and said: “ If I do not buy it what do you want done with it ?” Plaintiff told him he wanted it drawn to the freight-house of the Rensselaer & Sara-toga Railroad, and said to him: “ If you draw it there let me know immediately, so I can ship it to the man who is going to sell it for
Finding it was so gone, plaintiff, the following spring, wrote to defendant, saying to him that he wanted the machine or pay for it. Defendant thereupon had the machine shipped to plaintiff in care of said Clark, and it arrived at Saratoga on the 1st day of April, 1871, and remained at the freight-house at the time the suit was commenced, and at the time of the trial.
Upon these facts the referee found that defendant had wrongfully converted the press and fixtures to his own use, and directed judgment in favor of plaintiff against defendant for the value'.
I do not think the evidence shows a conversion of the press by the defendant. There has been no appropriation of the property by defendant to his own use, and no refusal to give it up to plaintiff when demanded. He held it, when left in his brick yard by plaintiff, as a bailee, without reward, and did more than he was bound to do when he returned it to the freight-house. His obligation went no further than to require him to permit plaintiff himself to take it away. There is no evidence that it was sent to Allegany county by his direction, but the reverse appears, and for its being sent there he was not responsible. The demand upon him to return it imposed no obligation on him to do so. It was for plaintiff, as before, to take it away, and his sending it back to Saratoga was, as before, doing more than he was bound to do. He sent it to plaintiff in care of Clark. He had the right so to direct it. At the last interview between him, plaintiff, and Clark, when notified that the press had been drawn to the freight-house, plaintiff him
I think.the referee erroneously found, as a fact, that defendant neglected to inform or notify plaintiff that the press and fixtures had been delivered by him at the depot in Saratoga, and that his conclusion that defendant converted the property to his own use is erroneous.
The judgment should be reversed and a new trial granted, with costs to abide the event.
Milleb, P. J., and P. Potteb, J., concurred.
Judgment reversed.