seems, upon reading the evidence in the case, that there was ground for the defendant’s request to submit the question of misrepresentation to the jury.
The disappearance of plaintiff’s books, from which alone the truth or falsity of the plaintifi’s representations, that the account presented to and signed by defendant, could be shown, was a suspicious circumstance. The books belonged to plaintiffs, were brought to court by them—were delivered into the custody of the court, and should have been most carefully guarded by the plaintiffs.
The evidence of Mr. Watson was uncontradicted as to what the plaintiff, Titus, swore on the preliminary examination his books showed, and that statement of Titus contradicted the account.
Whatever inferences were to be drawn from these facts, might be drawn by the court, unless the defendant required the jury to do it.
He did make the request, and the court should have left it to the jury (Lockwood agt. Thorne, 18 N. Y., 291).
Under the ruling in Markham agt. Jaudon, (41 N. Y., 235), the plaintiffs could not sell the defendant short without giving him notice, and were liable to him for a conversion.
If the agreement signed by the defendant at the foot of the account or settlement be urged as a settlement or waiver of the claim he then had for such conversion, it was without consideration.
*130It seems to me, that the judgment should be reversed, and a new trial ordered.
Judgment reversed, and new trial ordered.
I think, the question involved in this case, should have been submitted to the jury. Larremobe, J.
And I am of the same opinion. Dalt, Ch. J.