The plaintiff in this action sought to recover damages for an alleged wrongful conversion of personal property. Two trials of the action have been had. Upon the first trial plaintiff was nonsuited upon the ground that the contract between the parties was executory. The judgment was affirmed by a non-unanimous decision by the Appellate Division. Upon appeal to this court (226 N.Y. 459) the judgments below were reversed and a new trial granted. We held that the contract which was set forth in the opinion of this court, and consequently may be omitted here, was an executed contract and that defendant upon the record had unlawfully converted the goods, to recover for which the action was brought.
Upon the trial under review, the trial justice charged the jury that on the 28th day of February, 1916, plaintiff was entitled to the possession of the goods remaining unsold under the contract, and on that day defendant converted the same. The sole question remaining for consideration was the value of the goods.
Two propositions are urged by appellant: First, that the trial justice committed error in his charge to the jury that defendant was entitled to an interest in the goods of $754.93 when he took the goods away and directed that such sum should be deducted from any amount they determined as the value of the goods. In support of such alleged error, counsel argued that the contract having been executed and plaintiff thereby being the *Page 163 owner of the goods converted, that any amount due from plaintiff to defendant on account of the purchase price of said goods was not a proper subject of counterclaim in the tort action. Upon the trial evidence was adduced as to the amount due defendant from plaintiff without objection and as matter of fact the amount was conceded by counsel for plaintiff. Though plaintiff's attorney at the close of the charge to the jury took exception "to the submission of the question of the counterclaim to the jury and whatever you said on that," the proposition now urged was not saved to plaintiff upon the trial by proper objection and exception, and, therefore, cannot be considered on this appeal.
The second proposition argued by counsel presents error in the admission of evidence duly objected to and exception noted to the ruling of the trial justice. Defendant, as a witness, was permitted to testify that subsequent to the conversion he sold the goods at private sale for the sum of six hundred dollars. The trial justice admitted the evidence "solely as some evidence of value."
The evidence was incompetent for any purpose (Latimer v.Burrows, 163 N.Y. 7), and upon the record we cannot say that the evidence was harmless to plaintiff.
The judgments should be reversed, and new trial granted, costs to abide event.
HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Judgments reversed, etc. *Page 164