| Ill. | Apr 15, 1866
delivered the opinion of the Court:
This was an action of replevin, in the Jo Daviess Circuit Court, brought by Harrison .Bell against Willliain Farrar, sheriff of that county, for eight hundred and fifty-four sacks of oats, marked H. B. The defendant pleaded several pleas, the one principally relied on being the plea of property in Robert II. McClellan, as president of the Bank of Galena, and property in the Bank of Galena. Issues were joined and a trial by jury, who found a verdict for the defendant. The plaintiff entered a motion for a new trial for reasons filed, which the court overruled and rendered judgment on the verdict, to which the plaintiff excepted, and appeals to this court.
There is really but one question of any importance in the case, and that is, was there such a sale and delivery of oats by Bell to Cannon, as to vest the title in Cannon ?
A subordinate question has been stated, as to the competency of Cannon as a witness for defendant, the appellant insisting he was incompetent to testify.
Cannon was the party to whom Bell delivered the oats, and he, having them in his warehouse, issued, a warehouse receipt for them, on which he raised several thousand dollars from the Bank of Galena, a part of which, about $1,500, and some sacks of the value of $795, Cannon delivered to Bell.
We are of opinion, Cannon was a competent witness because his interest was balanced. If Bell succeeded in the action, then Cannon would have to pay on his debt to the bank a sum equal to the value of the oats. If the defendant succeeded under the plea of property in the bank, then Cannon would have to pay Bell for the oats, so that it was a matter of indifference to him, pecuniarily, which party prevailed.
As to the real question, whether the sale was so far complete as to vest the title to the oats in Cannon, this was properly left to the jury by instructions on the part of the defendant, to which we can discover no good objection. We think they clearly state the law of the case on the facts proved, and the proof sustains the verdict. There was an unconditional delivery of the oats by Bell, arid he received money on account thereof, from time to time, clearly showing they were not to be weighed at once, but that time was to be allowed for such purpose, thereby affording the strongest kind of evidence that the sale was on credit. They were not to be paid for until weighed, and no time was fixed within which, or at which, they should be weighed. These facts we think justified the jury in finding the sale was complete and vested the title in Cannon. The title being so vested, Cannon had the right to dispose of the oats as he pleased, and having, by the warehouse receipt, placed them in the power and possession of the Bank of Galena, the issue on that point was properly found for the defendant.
The appellant complains that certain instructions asked by him were refused by the court.
These instructions so refused were founded on a partial view of the case, the law of which is fully stated in the instructions given for appellee, and which is in accordance with the principles settled in Brundage v. Camp, 21 Ill. 330" date_filed="1859-01-15" court="Ill." case_name="Brundage v. Camp">21 Ill. 330.
The judgment of the court below is affirmed.
Judgment affirmed.