Tufts v. Park

Opinion by

Mr. Justice Bbown,

The appellant and appellees agree that the sole question to be considered is : “Was there a conversion of this soda fountain by the appellees prior to the issuance of the landlord’s warrant ? ” If the defendants had so converted it to their own use, the verdict in their favor rendered by direction of the court, and the judgment subsequently entered thereon cannot be sustained. The material facts in the light of which the question is to be determined can be readily condensed from the evidence. Goldaine, the tenant of the appellees, had become indebted in a large sum for arrearages of rent. Being so indebted he had in his possession the soda fountain in controversy, and the right of the appellant, under the terms of his contract, to take possession of it before the warrant was issued cannot be disputed. This right was not exercised. In his embarrassment Goldaine requested the appellees to supervise his business, and to send some one to his store to take charge of the cash received and pay bills to be incurred in running it. Hamilton, acting for the Park Brothers, and believing that the store could make money, consented to the arrangement proposed by Goldaine, and did take charge of and undertake to supervise the business, Goldaine remaining as tenant of the premises and having charge of the goods. Nothing was sold or transferred to the appellees. It nowhere appears that the landlords intended to or did purchase the stock and fixtures, and they could not have surrendered the fountain to which they made no claim of ownership, and which was still in the possession of Goldaine. They could not have surrendered that over which they had exercised no ownership, and which they,had no right to surrender to any one. Goldaine alone could have done this. If he had refused to surrender the fountain upon demand, the plaintiff had an instant remedy for the recovery of his property. The arrangement was simply for the appellees’ supervision of the business at the request of the tenant, in the hope, that so supervised, it might yield better returns and relieve him from his embarrassment.

Called as a witness by the appellant, Goldaine testifies: “ The arrangement was that Mr. Hamilton was to send a man down there to take a note of the cash that came in and see how it was spent and where it went to.” The cash received was deposited in the name of Goldaine. The testimony of this witness again was that the arrangement simply amounted to this : That at his request, Mr., Hamilton, who believed that the business could be made to go, was asked to come and take charge of the cash “and give a supervision over the business.” The goods, fixtures and everything in the store continued to be the property of the tenant, and he was in possession of them and the premises until after the sale on the landlord’s warrant. No agreement had been made that the arrangement with Hamilton was to last for any definite period. Goldaine could at any time have excluded him and his-representative from the store. The appellees neither directly nor through their representative at any time claimed to be the owners of the fountain by purchase or transfer from Goldaine, but, on the other hand, on June 8, 1897, sold the same as his, the tenant’s, property on a landlord’s warrant that had been issued after the experiment of their supervision of the business had been tried for several weeks without results anticipated.

We can find nothing in the evidence to justify the allegation that the defendants had converted the property to their own use, and there was no error when the court said, “ Under the testimony and the law as we understand it, the defendants are entitled to a verdict in this case.”

The judgment is affirmed.