WELLS a. KELSEY

WELLS a. KELSEY. Supreme Court, Second District; General Term, Sept., 1862. Conversion.—Demand and Refusal.—Evidence.—Value. A demand and refusal are evidence of a conversion, and nothing more. If the defendant refuses to deliver plaintiff’s goods on demand, and afterwards, before the commencement of an action therefor, signifies to the plaintiff his willingness that he may take them away, this does not constitute a conversion. It is not competent, on the question of the value of a chattel bought in mass with a number of others, to prove the value of the others in order to determine the cost of the first by deducting the value of the others from such purchase-price; AppeaTfrom a judgment. This action was brought by Thomas J; Wells, against Charles Kelsey, to recover $5,000 damages for the alleged conversion of two iron boilers and other property. The facts are fully stated in the opinion of the court. The plaintiff had judgment for $923.90, and the defendant, after a motion for a new trial had been denied, appealed. Britton & Ely, for the appellant. I. The questions as to the value of the articles purchased of Durkee & Co., and not converted by the defendant, were competent. (1 Greenl. Ev., §, 51; Smith a. Griffith, 3 Hill, 333.) Sales at auction, although forming^per se no conclusive measure of value, are admissible for the same reason. (Campbell a. Woodworth, 20 N. Y, 499.) Also a sale by the defendant may be shown by the plaintiff. (Suydam a. Jenkins, 3 Sandf., 614, 628.) II. They were also competent on cross-examination as a means of testing the accuracy of the direct testimony of the plaintiff. Suppose the answers to the questions put to him had been that he considered the engine worth $1,000, would not the fact that he bought the engine and boilers together, with various other valuable articles, for $1,200, of persons who had been trying for weeks to sell them in market, have been a proper circumstance to have aided in enabling a jury to have formed an opinion as to the standard by which he valued his own property ? And suppose his vendor had answered, that two weeks before he bought the boilers for $460, of a person offering them for sale in open market, would not this have been a significant circumstance ? III. The verdict was directly against evidence. ' TV". There was a very decided preponderance of evidence, to show that he never refused to deliver at all, but subsequently, and before suit, two men came for plaintiff, with the view of removing the articles, and then Kelsey in effect assented to their removal, but objected only to the manner of removal. Kelsey thereby clearly signified his willingness that the plaintiff might take the property away, and there was no conversion. Charles Crary, for the respondent. I. The property in dispute was never affixed to the defendant’s premises in such a way as to become a part and parcel of the realty. 1. The property, having been put into the premises by tenants for years, for the purposes of trade and manufacture, was personal property. (19 N. Y., 234; 10 Barb., 496; 5 Ben., 527; 1 Ib., 92; 20 Johns., 29; 5 Cow., 323; 6 Ib., 665; 7 Ib., 319; 1 Duer, 363.) 2. The property never belonged to the defendant, but was the property of E. R. Durkee & Co., from whom the plaintiff derived title. II. The plaintiff, having purchased the property of E. E. Durkee & Co., had a right to remove it, notwithstanding the termination of the tenancy. Any interference, by the defendant, with this property, or any resistance made by him to the owner’s claim to it, was a conversion which made the party liable. (5 Den., 527, 528; 7 Johns., 255; 5 Cow., 323; 2 Greenl. Ev., § 642.) The evidence was conflicting as to the extent of the defendant’s interference. It was a question of fact for the jury, and they having found a conversion, their decision is conclusive. The evidence shows, also, a substantial demand and refusal, and this has always been held evidence of a conversion. ITT. It was immaterial what the value of the other property, purchased by the plaintiff of E. E. Durkee & Co., was. The value of that property could have no effect upon the question of the value of the property converted. (1 Greenl. Ev., § 52.) IY. The attempt of the defendant to show that he had offered to return the property before the commencement of the suit, was a failure. This question was fairly left to the jury, and their decision is conclusive. [MAJORITY — By the Court.—Brown, J.] By the Court.—Brown, J. The plaintiff claims to be the owner, by purchase, from the firm of E. E. Durkee & Co., of two iron boilers, one iron boiler front, certain bolts, anchors, iron bars, a quantity of fire and a quantity of hard brick; and this action is brought to recover the value thereof, upon the ground that the defendant had converted the property to his own use. It was in a building upon Sedgwick-street, in the city of Brooklyn, of which the plaintiff’s vendors were the tenants, and Charles Kelsey, the defendant, the landlord. The term had ended in pursuance of. a stipulation in the lease, by which the destruction of the demised building, by fire, should have that effect. Iffithe case of Kelsey a. Durkee (33 Sa/rb., 410), this court, at general term, have adjudged that the articles referred to were not fixtures, and were the property of the tenants and not that of the landlord. The material questions which arose upon the trial of this action, át the Kings county circuit, in October, 1861, where the plaintiff had a verdict, was upon the conversion by the defendant, and that upon the value of the property. In regard to the conversion, the plaintiff, who was examined as a witness, testified, that he bought the property from E. R. Durkee & Co., on the 1st of October, 1860, and commenced to move it on the 2d of that month : “ I moved the engine and some other machinery connected ' with it. I then. commenced to take down the brick-work, and part connected with the boilers, and to remove the boilers; and while doing it, Mr. Kelsey came in and forbid me doing so. He said they were built in brick-work and connected with the building, consequently they were his property. He also said there was an injunction against the removal of them, and if I moved them, it would be at my peril. I then gave directions to the men I had employed, to leave them—that we might get ourselves into difficulty. I commenced to move on the 2d, and this might be on the 4th. He said these boilers and brick-work, and all there that were connected with and built into the brickwork, were his. I told him I had bought them, and had a right to remove them. He said if I did so, I would make myself liable to prosecution, or something to that effect. He acted rather excited. I went off, and left the property.” This evidence was, to some extent,, contradicted by the testimony of Charles Kelsey, the defendant, and of his agent, Stephen Halstead. But there was no conflict, as to the presence and interference of Kelsey, at the time referred to by Wells, and that he opposed and forbid the removal of some portion of the property purchased by Wells from E. R. Durkee & Co. There was also evidence, from which the jury might have inferred and found the subsequent assent of Kelsey to the removal of the property. The question, however, was fairly left to the jury. They were told by the judge, that “ a demand and refusal is evidence of a conversion, and nothing more. If the refusal is qualified in any way, the jury must judge whether the qualification, of the reason given for not delivering the property, is a , reasonable one. If it is reasonable, then the conversion is not made out, and the action must fail. If Charles Kelsey refused to deliver the property, on demand, and afterwards signified to the plaintiff his willingness that he might take it away, before the commencement of the action, then the conversion is not made out.” The jury found the fact of the conversion against the defendant, and their verdict cannot be disturbed. Upon the subject of the value of the property, a question of evidence occurred, which I will briefly examine. The bill of sale from E. R. Durkee & Co. to Thomas J. Wells, the plaintiff, read in evidence, included a steam-engine and various other articles of machinery and tools, besides the property to recover the value of which this action is brought. The price for the whole property was the sum of $1,200, without designating the price of each article separately. Upon the cross-examination of Thomas J. Wells, the defendant’s counsel asked him “ what the steam-engine was worth?” The question was objected to as immaterial and irrelevant. The court sustained the objection and excluded the evidence, and the defendant excepted. The steam-engine was not the subject of the action. The defendant’s counsel then asked the witness the following question—“ What was the value of the articles purchased by you, not included in this action ?” This question was in like manner objected to, the objection sustained, and the defendant excepted. The object of these two questions was to fix the value of the property which was the subject of the action. Assuming the value of the various articles named in the bill at $1,200, the price therein named, and deducting from this the estimated value of the articles not included in the complaint, would fix, it is thought, necessarily the value ot the property claimed by the plaintiff. It was evidence, it is said, from which the jury might infer.the value of the property in suit. The courts have received evidence of the price paid for the identical property or article in suit, as some evidence of its value. But when a large number of articles are sold in the aggregate for a. given sum, they have never received, that I can learn, the opinion of witnesses, as to the value of a part of the articles, for the purpose of ascertaining the value of the other part. Such a mode of estimating values of property, is open to many objections. It must assume that the price paid for the aggregate property, is the true value. It is very far from being so regarded. In the case of Smith a. Griffith (3 Hill, 333), the court say, “ though the price paid by the plaintiff was not conclusive upon him, as he mighthave been fortunate enough to buy under the fair market value, yet it is some evidence, and might well have been taken into the account with the other testimony. It was one of the multitude of sales, that in the aggregate might go to determine the market value, at the place where the purchase was made.” This was said, it must be observed, of an article having a market value, which second-hand steam-engines, boilers, pump-shafting, pulleys, pipes, cocks, tools, and machinery have not. In Campbell a. Woodworth (20 N. Y. 499), evidence of the sum for which the identical goods in suit were sold by auction, was offered and rejected; and in the opinion, Judge Denio says: “ In such case as the present, we think the evidence of what the goods sold for at the auction, should have been received for the consideration of the jury, to be compared with the other evidence of value that might be offered, and to be allowed such weight as the circumstances of the sale, and the degree of competition actually exhibited, should entitle it to.” All this has reference to the specific property itself, and not to some other property with which it happens to be united and valued, and from which it must finally be separated. The proposition of the defendant was, to separate the mass of machinery and tools into two separate parts, and take the opinion of his witness upon that part which was not the subject of the action, for the sole purpose of getting at the value of the part in controversy. And if the inquiry was legitimate and proper, to the extent proposed, it would have been equally legitimate and proper to take the opinion of witnesses upon the value of each separate article. No thought is given to the effect which separation might have upon the actual value of the property. It may have been of greater value, when sold together, than when sold in separate parcels, and may have been worth less. And it is very evident, from these considerations, that the opinion of the witness upon the value of the property sold by E. R. Durkee & Co. to the plaintiff, and not the subject of the suit, could be of no service to the jury in determining the value of that which was. It might confuse their minds and lead them away from the real question submitted to them, but it could do nothing else. The judgment should be affirmed. Present, Brown, Emott, and Scrugham, JJ.