(dissenting):
I cannot agree to the affirmance of this judgment. The verdict was clearly against the weight of evidence.
The only evidence that the defendant ever had the goods in his possession is in the testimony of Hahn, one of the clerks of Blum, the intestate. He testifies that the defendant “ said he wanted to receive a certain amount of goods for notes that were due to L. Langfeld; ” and that he and another clerk, Gorman, “ picked out a-*595lot of goods which we gave him as security for that note—to the defendant, Mr. Jonas Langfeld, as security for the note of L. Langiield.” But when cross-examined about the delivery to the defendant the witness was forced to confess his ignorance. He said, “ I do not know what • became of those goods; I don’t know if they were taken out of the place; I don’t know anything about that'; as far as I know, they did not remain there; I do not know what became of them; I could not say who took them away; I don’t know anything about that; I didn’t see them taken away.” Immediately after this, in answer to his own counsel, he retracts the whole of this confession. “ I saw them packed up, put in boxes; I know whether any of them went to Mr. Langfeld’s place of business — this defendant’s; his place of business was right in the same store opposite ours, and they were removed on the other side; I saw the goods packed on our side and removed on Mr. Langfeld’s side.” And there is a further contradiction in the very course of this re-direct examination. “ I did not hear him (the defendant) say anything about it; I did not hear him say anything about it after-wards about having received them or having had them; I had a talk with Mr. Langfeld afterwards; he said the goods were still there in his place; he said he had them.” Such statements are certainly entitled to but little credence. The witness shows a disposition throughout to vary his testimony to suit the exigencies of the ■case, as soon as he learns what those exigencies are.
The evidence on the other side is strong and convincing. There is the defendant’s denial that he ever received the goods; the admission of Louis Langfeld that he did receive them, and that they were delivered to him by Blum’s expressman in the ordinary manner, without any intervention on the part of the defendant; and the testimony of a salesman of the defendant’s that none of Blum’s goods were removed to the defendant’s office at the time in question. Strong corroboration of this testimony is furnished by Exhibit 0. This is a bill for the goods, headed “ Mr. L. L. Langfeld, Bought of Gustav Blum,” and rendered to Louis Langfeld the day after the goods were separated from Blum’s stock. It is highly improbable that this bill would have been sent to Louis Langfeld if the transaction had been with the defendant and while the goods were still in the latter’s hands.
*596In the face of the clear and convincing evidence for the defendant, corroborated, as it is by this bill, the reckless statements of Hahn cannot avail to support a verdict charging the defendant with a large sum of money, and fixing upon him the stigma of a serious charge.
The testimony of Mrs. Blum has not been overlooked. She says: “ I went to Mr. Langfeld with my attorney, Mr. Campbell, and requested Mr. Langfeld to kindly give me the goods which he had, and he says as soon as his note would be satisfied he would return the goods.” As Mr. Louis Langfeld was the only one who held a note against Blum, this testimony plainly refers to him, in spite of the fact that the witness had previously referred to the defendant as “ Mr. Langfeld.” In addition, the witness places the date of this demand as September, 1891, while the only demand pleaded is stated to have been made in June, 1892. The witness admits, too, that her recollection of these events is poor, and her attorney, who went with her, as she says, was not called to corroborate her, or his absence in any way explained. In view of the ambiguous nature of this testimony, it can have no probative force as evidence of an admission by the defendant that he had the goods, or that he held them in his own right.
If we should assume, however, that the defendant did receive the goods, the evidence to charge him is still insufficient. It is admitted that he was acting in his brother’s interest, and that the goods were delivered to him “ as security for the note of L. Langfeld.” The only additional testimony against him is that at some later period, not defined with exactness, the goods were still in his possession. But even-if they were, he held them, not in his own right, but as representing his brother, and as security for the latter’s note. Thát the goods did eventually reach Louis Langfeld, arid were by him sold, is established by uncontradicted evidence. There was also' Uncontradicted evidence that Blum authorized their delivery to Louis Langfeld for this purpose. We have, then, on the plaintiffs own evidence, merely the case of an agent who receives goods for a principal, who is entitled to them, and who then delivers such goods to this principal. Clearly, under such, circumstances, there is no conversion by the agent.
It is said that the defendant did not, in his answer, allege that he *597was entitled to the possession of the goods under any circumstances, or that he took them in the right of his brother. This was not new matter which he was required to plead. He distinctly denied the conversion alleged. On the general issue, as to conversion, he had a right to show any fact which, if true, negatived such conversion. He did not admit that, after the goods had been picked out and delivered to him, whether as the representative of Blum, or in his own right, Blum was still entitled to their possession. What he admitted was, that, originally, Blum owned the goods and was entitled to their possession. It was, therefore, competent, upon the issue of conversion, to show how, and under what circumstances, and in what right, he received the goods; and if, on all the facts, it appeared that, though they were delivered to him under authority from Blum, such delivery was in the right of his brother, and as security for his brother’s note, his refusal to return them until that note was paid, or his delivery of them to his brother, was not a conversion. The defendant did undoubtedly testify that he never received the goods at all. If he did not so receive them, then there was, of course, no conversion. He was, however, not concluded by this testimony. The issue of conversion was still open. He had a right to go further under that issue, and, upon the possibility that the jury might find against him as to the receipt of the goods, show that still there was no conversion. In other words, he could deny in his testimony the receipt of the goods and yet contend that, upon the testimony generally as to how and under what circumstances he so received them, there was no conversion.
The judgment should also he reversed for an error in the charge. The learned trial judge charged that there was not sufficient evidence in this case to show that Mr. Gorman, an employee of Blum’s, “if he entered into such a transaction as that (that is, the delivery of the goods to the defendant for Louis Langfeld), had any authority from Mr. Blum to do so.” Louis Langfeld had testified that he gave Blum the note upon the understanding that he was to receive goods in return, sell them, and apply the proceeds thereon; and that Blum, in his presence, directed that the goods be picked out and sent to him. The excuse made for the charge is, that this authority was only to deliver the goods to Louis Langfeld, not to the defendant. If the defendant had misapplied the goods, there might be some *598force in the contention. But inasmuch, as, if the defendant ever received the goods at all, he fulfilled his duty by delivering them to his brother, the charge was misleading and erroneous. The jury were given plainly to understand that Louis Langfeld himself had no right to the goods, and, hence, that the defendant was liable whatever he did with them. They were thus practically told to disregard Louis Langfeld’s testimony entirely.
There should be a reversal and a new trial.
Judgment and order affirmed, with costs.