Thompson v. Mursten 257 A.D. 1029

Judgment affirmed, with costs. Memorandum: Appellant’s main complaint is that the plaintiff should have been compelled, at the end of the trial, to elect between her cause of action in contract and the conversion count that was inconsistent therewith. Plaintiff complained that she hired defendant to repair a fur coat, using as much as possible of the fur that was in the coat, and supplying new fur of the same kind for the balance, and that she paid him seventy-four dollars for the work and new materials. She sued (1) for $324 for breach of contract in failing to do the work properly; (2) for seventy-four dollars for money had and received and unearned; and (3) for $324 for converting all of her furs that were in the coat and substituting inferior furs. It is true that the first contract count of the complaint is inconsistent with the conversion count, but the court did not submit that count to the jury. The court submitted only the seventy-four-dollar contract count and the conversion count. They are not inconsistent. One who takes money for repairing an article and then converts the article is liable for both the money and the value of the article. And the jury's verdict is not against the weight of the evidence on the issues submitted. AH concur. (The judgment is for plaintiff, affirming a judgment of the Buffalo City Court in an action for damages for breach of contract.) Present — Sears, P. J„ Crosby, Lewis, Taylor and Dowling, JJ.