Connor v. Lithauer

The plaintiff, a wholesale liquor dealer, according to the testimony of a salesman and a bookkeeper, delivered a barrel of whiskey to one Hemple, on consignment, i. e., to be sold for the account of the plaintiff; the whiskey remaining the property of the plaintiff until sold, and the quantity said to be determined from time to time by an inspecting gauger. The defendant, a marshal, acting under process against Hemple, seized' the barrel, with its contents, whatever they were, while in Hemple’s possession and sold both barrel and contents. For such seizure and sale was brought this action in conversion. It was testified to, for the plaintiff, that the stamps on the barrel, while in the marshal’s possession at the auction-rooms, were intact and that less than a gallon had been taken from the original quantity (46.81 gallons), a wantage which might have been accounted for by the tests. On the other hand, a person, who went to the sale to buy, testified that he examined the barrel and found there were five and a half gallons out, and that the proof of the goods was 90 per cent.; he went to gauge it. Afterwards on being asked on cross-examination whether it had been opened, he answered: “Ho, I think I *438took a bungstarter and opened it. The barrel was tight. It was bunged up, but it must have been, opened before, otherwise there would have been nothing out.” He did not know, however, the original contents of the barrel. Heither the marshal, nor any one on his behalf, testified to the condition of the barrel at the time of the seizure and as to whether it had been broached or tampered with. On this, the defendant recovered judgment according to his contention that the plaintiff had not proved ownership of the barrel and the identity of its contents. There was, however, no impeachment of the fact of delivery “ on consignment,” and the inference of identity was'too strong to be disregarded, for not only was the barrel itself confessedly the same, but the contents were presumably so, inasmuch as any one emptying the barrel, without effacing the stamps, would have been liable, as for a felony, to a fine of not less than $500, nor more than $10,000, and imprisonment for not less than one nor more than five years (H. S. R. S., § 3324), and any one, changing the contents for the purpose of selling other spirits, would have been liable to forfeit $200 and to suffer a fine of not less than $100, or more than $1,000, and imprisonment for not less than a month, nor more than a year. § 3326. The. judgment should be reversed.

Freedman, P. J., concurs; Leventritt, J., taking no part.

Judgment reversed, and new trial ordered, with costs to appellant to abide event. z