Opinion
December, 1922.
Anderson, Phillips Moss ( Harry G. Anderson and Louis J. Merrell of counsel), for appellant.
Koppelman Weinberg ( Harris Koppelman, of counsel), for respondent.
The plaintiff has recovered a judgment against the defendant for conversion of certain goods delivered to the defendant. It appears according to the plaintiff's testimony and of course the decision of the trial justice has resolved all disputed questions of fact in favor of the plaintiff, that some time prior to January, 1920, the plaintiff employed the defendant as his "sole selling representative in the United Kingdom and Allied and neutral European countries," and probably in all other foreign countries. The defendant requested the plaintiff to send him twelve complete lines of samples and promised to return these samples to the plaintiff whenever the selling arrangement between the parties should cease. The plaintiff sent one dozen samples of the various lines of goods which he manufactured, with a statement purporting to show the prices of the goods delivered to the defendant, and that they were sold or sent "on memo." In June, 1920, the plaintiff for cause terminated his arrangement with the defendant, and demanded back the samples. These samples had been by that time distributed to agents of the defendant in various parts of the world for use as samples. The defendant consequently was not in a position to return the samples immediately, but wrote to the agents to whom he had delivered them to return them, and promised the plaintiff that they would be returned in a month. The defendant has received from his agents in foreign countries a little more than a third of the samples, and has returned them to the plaintiff. The remainder of the goods were not returned to him by his own agents, and he has failed and refused to return them in his turn.
This evidence might be sufficient to justify a judgment against the defendant for breach of contract to return the samples delivered to him whenever his agency should cease, but a judgment in an action for conversion which makes the defendant liable to arrest and imprisonment can be sustained only if the defendant has exercised a dominion over the plaintiff's goods in defiance or disregard of the plaintiff's rights. The mere failure and refusal to return the goods to the plaintiff as rightful owner constitutes no conversion if such failure or refusal was due to the fact that the plaintiff's goods were not at that time in the defendant's possession and control. Since it appears that at that time the samples had been sent by the defendant to his own agents in foreign countries, and had not obtained return to him, the plaintiff can make out his cause of action only by showing that the act of sending these goods was such a disregard of the conditions upon which the goods were delivered to the defendant as to constitute an appropriation of the plaintiff's goods to defendant's own use and beneficial enjoyment, and the plaintiff seeks to sustain the judgment on this theory.
In my opinion there is not only no evidence to sustain such a finding, but, on the contrary, the evidence conclusively shows that the defendant in sending the samples to his own agents in foreign countries merely carried out the purpose for which the samples were delivered to him. The plaintiff knew that the defendant was in business in New York, and there cannot be the slightest doubt that it was the intention of the parties that the defendant should sell the plaintiff's goods in foreign countries, not by personal travel through those countries, but by agents or representatives whom he might employ there, and when the defendant asked for twelve lines of samples, the plaintiff must have understood that they were to be sent by defendant (to use the expression of plaintiff's own witness) "wherever he saw fit to dispose of them."
Judgment should, therefore, be reversed, with thirty dollars costs, and the complaint dismissed, with appropriate costs in the court below.
McAVOY and WAGNER, JJ., concur.
Judgment reversed.