The action being for conversion, the plaintiffs could not recover unless they proved their right of property in the chattels alleged to have been converted. The evidence introduced by them did not tend to prove this. They having sold the chattels (5,000 cigars, worth $300) to Curry, the most that could be claimed for the evidence was that he orally agreed to retransfer them to plaintiffs, and they agreed to take them in payment of their account against him. Nothing was done that could be construed to be a delivery or a payment for them, and nothing said indicating that the parties understood it to be a completed retransfer of the property, or anything but an executory agreement to retransfer.

The fact that Curry excepted the cigars from his bill of sale to defendant had no tendency to prove a sale in pracsenti to plaintiffs. *549It was not abuse of discretion to refuse, the day after the proofs were closed, to reopen the case for plaintiffs to make further proofs.

Order affirmed.

(Opinion published 55 N. W. Rep. 743.)