Opinion
July, 1899.
Robert L. Turk, for appellant.
Abraham H. Sarasohn, for respondent.
The plaintiff has appealed from a judgment dismissing its complaint in an action for conversion.
The ruling of the court was made at the close of the plaintiff's case. Only one witness, the plaintiff's credit-man, was called, and his testimony established the following facts: The defendant desired certain furniture on credit; the plaintiff refused to sell on those terms, but consented to consign the articles on the express understanding that title was to remain in it and that the defendant would immediately after each sale pay the agreed price mentioned in the memorandum. Upon cross-examination the witness admitted that the defendant had the right to sell the goods, for his own account, to whomsoever he pleased and at whatever figure he could obtain. The sole condition in the event of sale was that thereupon the agreed price should be paid to the plaintiff. After the defendant had sold the goods in suit and had failed to remit the proceeds therefor, the plaintiff, with full knowledge of the sale, made a demand for the goods but not for the money to which it was entitled, and upon the refusal brought this suit for conversion of the goods.
The action will not lie. Failure to account for the proceeds of the sales made the defendant liable in an action on contract, but did not make him guilty of a conversion. Laverty v. Snethen, 68 N.Y. 522; Greentree v. Rosenstock, 61 id. 583; Wright v. Duffie, 23 Misc. 338. In Greentree v. Rosenstock, the court says: "It is not legally true that a commission merchant who has sold goods and received the price does, by retaining the price, convert it to his own use, so as to make him liable in action of trover." And to the same effect is Walter v. Bennett, 16 N.Y. 250. The case of Wright v. Duffie, supra, recently decided by this court, is closely analogous to the one at bar. There the defendant was under an arrangement with the plaintiffs by which he received from them certain goods which he was authorized to sell for their account to customers of his own finding, and with authority also to collect the proceeds of the sale. It was sought to charge him in conversion for his failure to remit the proceeds, but the court, Beekman, P.J., writing, held that the action could not be maintained.
In the case under review it is undisputed that the plaintiff was authorized to sell in the particular manner adopted by him. The demand for the return of the furniture, after it had been sold in accordance with the contract between the parties, was without effect in law. The plaintiff can sue in contract, but trover for misappropriation of proceeds is not the proper remedy. 26 Am. Eng. Ency. of Law, 738. Thomas Manufacturing Co. v. Symonds, 27 A.D. 316, relied on by the appellant, is not in point. In that case the defendants were bound to return the consigned property at the end of ninety days, if unsold. This they failed to do. No presumption arose from the complaint that the property was not at the time of the alleged conversion still in the defendants' possession. "If as a matter of fact they (the bicycles) had been sold," the opinion reads, "the defendants might have set it up as a defense to the claim that they had converted them." This sentence alone is destructive of the appellant's contention. On its own proof it established that the defendant had sold prior to the alleged conversion that which he had a right to sell, and thus he interposed a valid defense to its cause of action.
The judgment should be affirmed.
FREEDMAN, P.J., and MacLEAN, J., concur.
Judgment affirmed, with costs to respondent.