I concur with Hr. Justice Clarke that the defendant’s contention that the plaintiffs could not, as the consignors of the merchandise, maintain the action was properly overruled. I do not concur with him, however, in the statement that there was any evidence to justify the jury in finding that the defendant was guilty of conversion. There is no competent evidence in the case that the consignees never received these goods. Plaintiffs so allege in the complaint but the defendant denies that allegation in the answer, and there was no express evidence that the merchandise had not been delivered. The only evidence in that respect that I can find in the record was that the plaintiffs or some of its employees made statements to the defendant that the goods had not been delivered, but this certainly was no evidence of that fact. The contract was to transport this merchandise and deliver it to consignees in the States of Tennessee, Maryland, Ohio and Hew Jersey, and, of course, a delivery to the consignees would have been a compliance with the *312contract and would have prevented a recovery for either a breach of contract or conversion.
At the close of the plaintiffs’ case the defendant moved to dismiss the complaint on the ground that the plaintiffs had absolutely failed to prove non-delivery to the various consignees, and that motion was again renewed at the end of all the testimony. The only evidence that can be said to have any bearing upon the question as to whether these goods had been stolen by one of the defendant’s employees was a statement by an employee of the defendant in charge of one of the defendant’s offices that the packages had not come to that office. I am inclined to think that if there was evidence that the packages had never been delivered there would then have been evidence for the jury as to whether or not there was a conversion by the defendant, leaving it for the express company to explain, if it could, what had become of the packages; but, in the absence of any direct evidence that the goods were not transported and delivered to the consignee, I do not see how the action could be maintained. The fact that the defendant took measures to try and trace the goods when the plaintiffs had reported that they had not been delivered is not evidence of nondelivery, nor is it evidence of non-delivery that one of the defendant’s employees stated in answer to the plaintiffs’ claim that the goods had not been delivered, that he guessed they had been stolen. The prevailing opinion seems to assume that the evidence was that these packages had not been delivered. I can find no such evidence in the record and nothing to justify a finding of nondelivery. It seems to be conceded that this guess of the defendant’s employee was not competent, but whether competent or not it clearly proved nothing, and it seems to me that the fact of nondelivery to the consignees was the entire basis of the plaintiffs’ right to recover, whether in conversion or for a breach of thp contract ; and there being no evidence in the case, and a motion to dismiss having been made upon that ground, I do not see how the judgment can be sustained.
I, therefore, dissent.
Scott, J., concurred.
Judgment and order affirmed, with costs.