Aaron H. Wellington, Respondent, v. Franklin Morey et al., Appellants

Aaron H. Wellington, Respondent, v. Franklin Morey et al., Appellants. (Argued October 16, 1882; decided November 14, 1882.) This was an action for conversion of a steam boiler. Defendants’ counsel moved to dismiss the complaint on the trial, on the ground that the evidence established that defendants sold the boiler with the consent and at the request of the plaintiff. The court denied the motion and submitted' that question to the jury. The counsel on both sides and the court assumed that the action was well brought if the sale was unauthorized. The point was made here that plaintiff, by demanding the proceeds and suing for a conversion, ratified the sale and defendants stood as mere agent liable to account, but not for any tortious intermeddling with the property or its proceeds. Held, that as this point, so far as appears, was not taken on the trial, it could not in the absence of an exception be taken on appeal; and that the evidence justified the submission of the question as to authority to the jury. Oliver B. Branch for appellants. ■ Warren G. Brown for respondent. [MAJORITY — Andrews, Ch. J.,] Andrews, Ch. J., reads for affirmance. All concur, except Rapallo, J., absent. Judgment affirmed.