We shall first consider the point raised by the appellant, both at the time of the trial and on the motion made thereafter at Special Term .for a new trial on the ground of irregularity, in that improper communication was had with the jury during their deliberation, that without the knowledge or consent of the appellant the plaintiff of- his attorney caused to be handed to the jury a paper not in evidence on the trial, which paper was taken by the jury into the jury-room and brought back by them on the rendition of their verdict.
The procedure here was a proper one. Valiente v. Bryan, 66 How. Pr. 302.
The plaintiffs on their own behalf seek to. recover on the first cause of action, and on the second cause of action as assignees-of Vogel & Co., on the ground that the merchandise in each instance was consigned to the defendant, that demand for the return thereof, or the amount realized therefrom, was made in each instance and was refused, and in consequence thereof the defendant has, converted said.merchandise, to their damage.
The defendant, in effect, denies each and every allegation. At the trial it was admitted that the defendant and plaintiffs, as well as Vogel & Co., who had assigned, their claim to plaintiffs, had many previous transactions, but the defendant contended throughout the trial that all his transactions with them were for goods actually purchased by him and sold to him by the plaintiffs and Vogel & Co. That at no time were any goods consigned to him nor did he make any request for the same. Some exhibits were offered in evidence and marked and others were only márked for identification.
.Among those papers, on behalf of the plaintiff j was one known as Exhibit A, and which had been admitted against defendant’s objection under the-following testimony:
“ Q. Did you at that time, when these goods were so given to him, make any memorandum or entry in your books, the original entry, as to the terms upon which these goods were delivered? Defendant’s counsel objects. Admitted. Defendant’s counsel excepts. A. Yes, sir. Q. Is this a list of the goods that are spoken of in your testimony? (Paper shown witness.) Defendant’s counsel objects. A. Yes, sir.
“ List referred to offered in evidence. Defendant’s counsel objects as immaterial, irrelevant and incompetent.
“ Plaintiff’s counsel.-—I offer it merely as a matter of eonveni*80ence. Admitted. Defendant’s counsel excepts. Marked plaintiff's Exhibit -No. 1.”
•The book of original entry .was not offered in evidence,' nor was this exhibit said- to be a true- copy thereof, but only a list of the property testified to, and yet on its. face, without explanation, it bore more than a mere list, and assumed to give the terms of the alleged contract between the parties with the amount consigned and the credits of goods returned and the balance remaining.
On its face it presents the conclusions of some one or the maker thereof of the standing of the defendant, since it gives the date and items of delivery of the goods as June 8, ,1892, and the credits as for the goods returned July 2, 1892!
It was not a.paper received by the defendant so as to bind him by the words “ Terms on memorandum,” and, therefore, was certainly improperly received and -admitted in evidence.
But irrespective of the propriety of its admission in evidence, it was there with all its force and effect and being the original evidence of the contract as alleged by the plaintiff. '
Another exhibit which was only marked for identification was Exhibit Cl
That was identical" with Exhibit A in evidence, except as to the date and items and. containing these words “Terms net cash.”
Exhibit E was in evidence as follows:.
PLAINTIFF’S EXHIBIT “E.”
Elliott .& Cougle,
No. 52 Elizabeth St.
New York, January 6, 1892.
Charge to
Sent to C.- H. Luengéne care A. H. King Co., Fulton Street and ' Bedford:
On back what to come back if not sold.
Terms . " . 25 per cent.
1 No. 91-B. & D. Old Eng., $83; 25 per cent., $20.75., $62 25
1 No. 274 i Eng. B. & D. net. . . > .;............. 55 00
4 Desks . ......... 30 00
1 No. 380 16th C. suit;......................... . 22 50
1 No. 375 16th C. suit. .-.......'... 1........ 2.2 50
1 No. 32 Ex. Table, 8 feet.........-................ 14 00
1 No. 76 Ex. Table, 8 feet........................ ■ 16 00
*811 No. 21 Ex. Table, 8 feet................,........ $16 00
1 No. 62 Ex. Table, 8 feet.......■................ 18 50
$256 75 .
1 No. 91 B. & D. Old Eng.................. $62 25
1 No. 92 B. & D. Old. Mag...................... 90 00
1 No. 93 B. & D. Old Mag......... 90 00
1 No. 201 Ant. S. B............................ 100 00
1 274 Í Eng. B. & D............................ 55 00
1 No. 95 Eng. S. B.......■............................
1 No. 96 Eng. S. B..........;.................. 90 00
1 No. 96 16th O......................................
$487 25
Goods to be returned if not sold.
$634 75
2 No. 29 Ant. Table, 8, at $23................... 46 00
2 No. 27 Ant. Table, at $18...................... 36 00
1 No. 71 Ant. Table,, at $13......................'. 13 00
2 ■ , at $1.50.........................' ' 3 00
$732 75
2 No. 172 i Tables, at $12.50.................... 25 00
$757 75
TNo. 201 Ant. S. Board.......................... $100 00
256 75
1 No. 80 16th Sent. S. B.... .................... 35 00
1 No. 23 Ant. S: B..................... 30 00
1 No. 95 Eng. S. B:.......................;.........
1 No. 96 Eng. S. B...................................
1 No. 96 16th Cent............................ 90 00
1 No. 71 Ant. S. B............................ 16 00
. 2 No, 72 Ant. S. B., at $13.50.................... 27 00
1 No. 92 Mahog. B. & D......'.................. 90. 00
1 No. 93 16th B. & D.......................... 90 00
$634 75
*82Here they we have three exhibits, if all were properly admitted, showing on the face thereof different terms and distinct terms'.
It is admitted that Exhibit C for identification was with the other two in, evidence handed by the plaintiff’s attorney to the court officer who had charge of the jury on their leaving the courtroom for deliberation, and was taken by them into their room.
It is also the. fact that on their return from then* deliberations, and after arriving at a verdict, they returned to'the court the three exhibits already spoken of, and. among these was Exhibit G for identification, at the same time announcing their-verdict.
The defendant immediately upon this discovery made his motion to discharge the jury.
The trial justice, however, received the verdict ag’ainst the objection of the defendant. Immediately thereafter the defendant, again renewed his motion and the trial justice took the motion under advisement.
• Having received the verdict against the. objection of the defendant the trial justice lost jurisdiction, and the only way the defendant could" then have the motion considered was to apply at Special Term (Moore v. R. R. Co., 15 Daly, 506), which he did, and the same was considered by the same judge sitting at Special Term. . = ' '
This motion was denied on the grounds particularly that the' taking of the paper aforesaid did no harm to the defendant.
This is the question first to be- determined.
From a careful examination of the testimony it is clear that the jury must have considered this paper, “ Exhibit 0,” because before retiring one of the jurors asked: “What relation have the bills in- evidence to the case ? The Court. You have a right to take them into consideration. The bills are not conclusive. They are .simply evidence of the transaction had between the parties. Plaintiff’s counsel. -In.no event are these bills to be regarded bill's of sale. The Court. They are not bills of sale; undoubtedly not. Defendant’s counsel. I except to that and ask your honor "to charge that the bills themselves show they are bills "of sale." A paper which says 'sold to ’ or ' bought of ’ constitutes a bill of sale in law. The Court. I decline to charge that they are bills of sale in law. Defendant excepts.”
Again, after the jury had retired a written communication was sent by them to the "trial justice as follows: “Were not the plaintiffs obliged to mark the words ' on memorandum ’ or ' on consign*83ment ’ on the bills rendered so as to make the same really a ' consigned account? ’ ” To which the court .answered “ Mo.”
The jury had before them then a paper marked “ Terms on memorandum,” another marked “ Terms net cash,” and a third paper marked “ Charge to.......... Terms........ 25 per cent. On back what to come back, if not sold.”
The defendant had absolutely denied that any goods were consigned to him at any time, and that the words on Exhibit E, “ what to come back if not sold,” were not written in his presence nor with his consent or knowledge, and that the entire bill was a purchase and sale.
The jury were no doubt considering the defendant’s oral testimony and the variety and difference of the written testimony in regard to the terms, and when comparing the words “ Terms..... 25 per cent,” on Exhibit “ E,” and which was claimed by the plaintiffs to be evidence of a former consignment of goods, with the words “' Terms net cash,” contained in Exhibit “ 0 ” for identification, which was conceded to be an absolute sale, and being in doubt they were led in order that they might determine from all the evidence in the case as to'whether these transactions at issue were a sale or consignment to inquire why Exlíibit “ E,” if it was a consignment, did not contain the words “on memorandum” or “ on consignment ” on the bills rendered so as to make same really a consignment account,.
The court answered “ Mo ” and this ended the discussion.
The paper was then before them in the jury-room, seen by some and perhaps by all of them, and the presumption must be, in the absence of more convincing proof to the contrary than that presented, that it was read wholly or in part and referred to by some one of those who saw it.
It was competent for the plaintiff to offer the affidavits of the jury to sustain the verdict by showing that the paper was not read. This the plaintiff omitted to do.
I am convinced from a careful examination of the. evidence and the taking of this paper by the jury into their room that it was examined, considered and had an important influence on their verdict. See Mitchell v. Carter, 14 Hun, 448 ; Dolan v. Aetna Ins. Co., 22 id. 404 ; O’Brien v. Merchants’ Ins. Co., 38 N. Y. Super. Ct. 482.
■ I am satisfied that this paper was not intentionally given to the jury by the plaintiff’s attorney and was given only in the manner *84stated by him. It was still a serious mistake and an improper communication to the jury and one for which the verdict should be set aside.
The tendency is to look with distrust upon all irregularities and communications with jurors, whether at_the trial or after they have withdrawn to their room to consider the verdict.
The verdict for these reasons alone should be set aside and a hew trial granted, with costs to the defendant to abide the event.
The defendant has taken many exceptions during the trial and we now proceed to. examine a few of them. •
The admission of Exhibit “ A,” after it was once rejected by the-court, as a list of the articles, was error, since it was not to refresh the witness’ recollection and not made by him and purported to state the manner and terms of the contract alleged by the plaintiff without any proof of its origin or being signed or' sanctioned by the defendant. National Ulster County Bank v. Madden, 114 N. Y. 280 ; Rosenstock v. Heggarty, 36 N. Y. St. Repr. 93 ; Joslyn v. Pulver, 59 Hun, 136 ; Donlon v. English, 89 id. 69.
Again the- following ridings and- questions appear:
“ Q. Did you on that occasion state to Mr. Elliott that you wanted any goods on consignment? Plaintiffs’ counsel objects. Objection sustained. Exception. Q. Was there anything said by you to Mr. Elliott that you wanted goods on consignment? Plaintiffs’ counsel'objects. Objection sustained. Exception. Q. Did-he say anything to' you that he wanted to let. you have goods on consignment? Plaintiffs’ counsel objects. Objection sustained. Defendant excepts.” •
The only issue was whether the defendant had purchased -the goods or received them on consignment,' and the plaintiff had related conversations claimed tó have been had with the defendant in which the subject of consignment was spoken of.
It wa-s, therefore,- proper.and pertinent for the defendant’s counsel to ask whether he, the defendant, had any such conversation, or whether the plaintiff had ever spoken to him about the same. We think this was error..
Again, when the judge had finished his charge to the jury, a juror asked: “ What relation have the bills in evidence to the case?”
The court answered: “ You have a right to. take them into consideration. The bills are not conclusive. . They ' are simply evidence of the -transaction had between the .parties.”
*85This was correct, and had the judge stopped there would have been all right, but the plaintiffs’ counsel said: “ In no event, are these bills to be regarded bills of sale.” The Court: “ They are not bills of sale; undoubtedly not.” To which the defendant excepted.
It was conceded that the numerous items on each of the bills had been delivered and. accepted, except the ones alleged to have been consigned were.purchased.by the defendant and sold to him.
The rule is that such papers containing the words “ bought of ” of “ sold to,” unexplained and unaccompanied by delivery and acceptance, become such a contract or the written evidence' of the contract of sale within the intention of the parties and entitled to such effect. Bonesteel v. Flack, 41 Barb. 435 ; Coe v. Tough, 116 N. Y. 273, 278.
The defendant’s request to charge immediately following this was too broad and not the law.
After the jury retired the following communication in writing was sent to the court: -
“ W ere not the plaintiffs obliged to mark the words ‘ on memorandum ’ or ‘ consignment ’ on the bills rendered so as to make the same really a ‘ consigned account? ’ ” To which the court answered “No.” Defendant’s counsel. “In connection with the question asked by the jury and the answer- by the court thereto, we request the court to .charge that the words ‘ on memorandum ’ or ‘ on consignment ’ not being written on the two bills is a circumstance which the jury may take into consideration in determining the question whether the transactions in question were sales or were merely consignments.” The Court.: “ I decline so to charge.” Defendant’s counsel excepts.
This request should have been allowed, since the trial justice had already charged that they had a right to take the bills into consideration and that they were not conclusive. Having before them a bill, Exhibit “ A,” marked “ Terms on memorandum,” which contained the items of goods claimed by Vogel & Co., and another bill which represented the portion claimed by the plaintiffs, and which occurred in January, 1892, and which the plaintiffs say Was a consignment, but which only contained the words “ Terms net,” the jury having the whole evidence before them had a right to consider these omissions in determining the question whether the transactions before them were sales or merely consignments.
*86For this' and thp errors' already pointed out the judgment and order should be reversed and a new trial' ordered, with costs to the appellant to abide the event.
Van Wyck, Ch. J., concurs.
Judgment and order reversed and new trial ordered,, with Costs to appellant to' abide event.