| Ill. | Sep 15, 1874
delivered the opinion of the Court:
This was replevin, in the La Salle Circuit Court, for a piano, and a verdict and judgment for the plaintiff, to reverse which the defendant appeals.
The facts of the case are briefly these: The firm of Colwell, Clark & Co., of which appellant was a member, obtained a judgment before a justice of the peace of La Salle county, against one George Buckley, on which an execution issued, in due form of law, and delivered to a constable, to be executed. At the date of the execution and its delivery to the officer, Mrs. Brower, the appellee, had in her possession a piano, the property of Buckley. Mrs. Brower was a dealer in those instruments, and she caused two of them, resembling each other, one her own, and the other the Buckley piano, to be boxed up in similar boxes, ready for transportation. The officer went to appellee with the execution, and notified her thereof, and requested her to designate to him the Buckley piano, he telling her he understood it was one of the two she had boxed up for shipment, and then present in her store. There is some conflict as to what actually occurred at this interview; but the weight of the evidence makes it clearly apparent that appellee so acted as to induce the officer to levy the execution, not upon the Buckley piano, but upon the one in controversy, now claimed by her. We think the circumstances strongly tend to show that appellee fraudulently induced the officer to levy on her own piano, as Buckley’s property. She knew it was the intention of the officer to levy on that piano, and she induced him to levy upon her own, and stealthily shipped the Buckley piano to Chicago, in fraud of the levy, and for the very purpose of defeating the execution. By her contrivances, the officer was induced to do what he would not otherwise have done, and she ought to bear the consequences. Heffner v. Vandolah, 57 Ill. 520" date_filed="1871-01-15" court="Ill." case_name="Hefner v. Vandolah">57 Ill. 520. The case of Leeper v. Hersman, 58 ib. 218, also applies. The evidence sustains the second, third, fourth and fifth pleas of defendant.
It is urged that the levy on this piano had been released by the officer, and he could not again levy on it, after being fully informed it was not the Buckley piano. We do not think the proof shows a release of the levy. The officer did go to the station agent, and directed him to let appellee have the piano, if she called for it; but she did not call, and no actual release was made.
In a case like this, there being so many circumstances going to show a fraudulent attempt to defeat the operation of a legal writ, we would require the strongest proof that the levy had been released, with a full knowledge of the circumstances.
In the view we have taken of the case, we think the fifth instruction should have been given. It is as follows:
5. “ The jury are further instructed that it is their duty to take into consideration all the facts and circumstances surrounding the case, as disclosed by the evidence —the actions of the parties at the time of the taking of the piano in controversy, and preceding and succeeding such taking, the motives of the parties respectively, and their respective objects in regard to the subject matter of this controversy, whether or not the plaintiff was in a frame of mind that would dispose her to remove the piano called the Buckley piano from this county, and whether or not she was seeking to prevent a levy on that piano, or disposed so to do, and whether or not the officer under the execution was seeking to make a levy in good faith upon the Buckley piano. All circumstances of this nature, as well as every other fact and circumstance disclosed by the evidence that has a tendency to throw light upon the motives or objects of the plaintiff, or of the officer making the levy, should be carefully considered by the jury in the determination of this case. The surrounding facts and circumstances are as much a part of the evidence as the testimony of the witness upon the stand.”
The true ground on which to place the case is, that by the fraudulent conduct of appellee, the officer having the writ was induced to levy on her piano, whilst she removed the true one out of his reach. The doctrine of estoppel is fairly applicable. It may be likened to a case where one stands by and sees another sell his property, making no objection, and setting up no claim. He will be estopped from ever after claiming the property.
A question is raised as to which party had the right to open and conclude the ease to the jury.
The rule, believed to be uniform, is, that the party holding the affirmative of the issue has this right. This was the position of the defendant in this action. There were no facts to be proved by the plaintiff. The onus, under the pleadings, wras upon the defendant.
For the reason given the judgment is reversed.
Judgment reversed.