Rowell, C. J.
This is trover for two thousand and more ;-soda bottles. The case was referred. Judgment for the plaintiffs on the report, to which the defendant excepted. The facts .are these, shortly stated: The plaintiffs are bottlers of soda *189in Brattleboro, and shippers thereof for consumption to various-points and places; the defendant is a merchant at Ferrisburg and North Ferrisburg, to whom the plaintiffs sold and shipped, during such a time, thousands of bottles of their product, the-terms of the sales being that the bottles should be and remain the property of the plaintiffs and be returned to them by the-defendant, they paying the freight each way. The plaintiffs kept an account with the defendant for the soda, and a memoranda account for the bottles in which it was shipped, wherein, on receipt of the empty bottles returned, they were to give-the defendant credit therefor. At the time this suit was brought, the plaintiffs had not actually received the bottles sued for, but the defendant had delivered them to the station agents at Ferris-burg and North Ferrisburg, consigned to the plaintiffs at Brattleboro, and they were loaded and waybilled. The referee submits whether on the facts found the bottles were delivered to the plaintiffs before suit brought. If they were, he finds-for the defendant. The court evidently thought they were not,, and so adjudged for the plaintiffs. This was error, for the report-discloses nothing tending' to show conversion, and that defect is reached by the exception to the rendition of the judgment,, as it was necessarily involved in its rendition.
It is sufficiently accurate and comprehensive for present-purposes to say, as is said in the Vermont Digest, c. 2768, pi. 12, that in the sense of the law of trover, a conversion consists, either in the appropriation of the property to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the owner’s-, right, or in withholding possession from the owner under a claim, of title inconsistent with his title. Here the defendant did none-of these things.
Judgment reversed, and judgment for the defendant to recover Ms cost.