Jackson v. Klinger

There was evidence tending to show that the defendant Chapman was the mere agent for others in making the purchase, and that he had no property in or control over the articles in question. Upon this view of the evidence, which we must assume was taken by the trial justice, there was no conversion established against such defendant, and as to him the dismissal of the complaint was right. So far as the defendant Klinger is concerned, we think there is clear evidence of a demand sufficient to sustain a judgment for conversion, assuming that the plaintiffs had established a right of property in the articles in question. This, we think, was done. Said articles were in the house when it was let by the plaintiffs to Mary Braendly, and formed a part of the premises demised. It is claimed that said fixtures were put in by a previous tenant, and an attempt was *759made to show a transmission of title from him to others, but the evidence on that point is very vague and unsatisfactory. What does appear is that the former tenants left the property and never undertook to remove said fixtures, which thus apparently became the property of the landlord. The demand upon the defendant Klinger was abundantly proven. The point made that the judgment against the defendant Klinger recovered on the first trial of this cause was not reversed, and must, therefore, stand, because he did not appeal therefrom, is untenable. The plaintiffs should have made it below and should have objected to any participation by said defendant in the new trial. This they did not do, and they must be deemed to have acquiesced in the construction put by the defendant upon the order of reversal, that it operated upon the judgment with respect to both. It follows that the judgment should be affirmed as to the defendant Chapman, with costs, and as to the defendant Klinger reversed and a new trial ordered, with costs to the appellants to abide the event.

Judgment affirmed, with costs, as to the defendant Frank Chapman, and as to the defendant Henry Klinger reversed and a new trial ordered, with costs to the appellants to abide the event.

Present: Beekmatt, P. J., Giegebich and O’Gormah, JJ.

Judgment affirmed, with costs, as to defendant Chapman, and as to defendant Klinger, reversed and new trial ordered, with costs to appellants to abide event.