| Ill. | Jun 15, 1870
delivered the opinion of the Court:
This was an action of trespass quare clausum, fregit, with a count for taking and carrying away two hundred cords of wood, brought to the Marion circuit court, by John N. Wood-ruff against Zarda Frost and others, and a-verdict and judgment for the plaintiff, to reverse which the defendant has appealed.
There were several issues presented by the pleadings which it is not important to notice particularly, as the controversy was made to turn on one point, and that is, was the sale of the cord wood to plaintiff complete before the execution issued against Harrison Woodruff? If it was, then the verdict was right, and to this alone have we directed our inquiry.
It is undoubtedly true that, as between the parties to a contract of sale, the sale is good without a delivery. Wade v. Moffett, 21 Ill. 110" date_filed="1859-01-15" court="Ill." case_name="Wade v. Moffett">21 Ill. 110. The property may remain with the vendor any length of time, if the vendee takes it into his possession before any lien attaches to it while in the hands of the vendor, provided the transaction between vendor and vendee is bona fide. Cruikshank v. Cogswell, 26 ib. 366.
What are the facts in this ease ? The wood was contracted for on the second of January, 1868, before it was all cut. It was to be measured and delivered to the plaintiff by the choppers, when they had finished the chopping. A part of the wood was measured for delivery about the fifteenth of February, 1868. On the same second day of January, 1868, Butherford and Jenkins recovered a judgment against the then owner of the wood, Harrison Woodruff, the son of the .plaintiff, for about twenty-five dollars. On the twenty-seventh of the same month, a fi.fa. issued on this judgment, and was levied by the constable on the same day, on fifty cords of the wood then being corded on the land of the defendant in the execution, as the property of the defendant, and the same was sold at public sale to the appellant, who hauled it away.
The lien of the execution attached on the twenty-seventh of January; The measurement was not made until the middle of the following month, and that was requisite to passing the title. Before the title passed to appellee, the wood became subject to the fi.fa.
It is a rule established by this, as by other courts, that in a sale of personal property, when anything remains to be done to complete the contract, such as ascertaining quantity or delivering possession, the title does not pass until these things are done. O’Keefe v. Kellogg, 15 Ill. 347" date_filed="1854-06-15" court="Ill." case_name="O'Keefe v. Kellogg">15 Ill. 347; Schneider v. Westerman, 25 ib. 514. As in the ease of the puncheons in the case last cited, until they were made and ready for delivery the title could not vest by force of the agreement to manufacture them, so here the title to the cord wood could not vest by force of the bargain with his son to have it cut, until it was cut and measured.
Before it was measured, it was seized and sold on an execution against the owner of the wood, and purchased by appellant. By this purchase, appellant’s title was complete. Bemoving the wood by him under this purchase is the trespass of which complaint is made.
It is a clear case for appellant. There is no necessity for considering the instructions. The verdict should have been not guilty, on the evidence. The motion for a new trial should have been allowed. It was error to refuse it, and for that error the judgment is reversed and the cause remanded.
Judgment reversed.