| Ill. | Mar 26, 1884
delivered the opinion of the Court:
We find no reason to disturb the judgment of the Appellate Court. It is contended the circuit court erred in admitting the testimony of Strausz and Schroeder, given after the proofs for defendant were closed, tending to prove that Strausz had no knowledge of any sale to Metzler until after the goods in Klein’s hands had been taken on the writ of replevin, and also tending to prove that the remaining part of the stock (ear muffs) was taken away in great haste in the afternoon of January 12, and after the other goods were taken from Klein on the writ of replevin, and for this error the Appellate Court ought to have reversed the judgment. It is insisted all this evidence is irrelevant, having no legal bearing upon the title of Metzler or Klein to the goods in controversy. We do not think so. The testimony of Charles Metzler, already given, tended to show that while the purchase of the plush, braid and binding was made by Metzler before his purchase of the residue of the stock, it also tends to show that the, latter purchase was made soon after, and does not exclude the idea that it was made on the evening of the 11th. The facts that the sale was to Schlesinger’s son-in-law; that Metzler’s brother refused to be a party to either purchase; that the goods were brought to the store at the same time; that Metzler, when Sehlesinger found Klein had offered 87J cents a yard, at once consented to take the goods at one dollar, when before he was willing to give no more than 85 cents, and his partner would not buy at that,—afforded ample ground for further inquiry, and authorized proof that both these sales were kept from the knowledge of his partners by Sehlesinger’, and that the ear muffs were rémoved from the store with great haste, and in the absence of and without the knowledge of his partners. The proof, subsequently brought out, that while there were some four hundred boxes of ear muffs taken from the store of Strausz, Sehlesinger & Go., only one hundred and twenty-five boxes reached the store of Metzler & Go., tending to show that over two hundred of the boxes were spirited away, further shows that it was proper all this evidence should be considered by the jury. It tended to show that the apparent sales to Metzler were not real, but were mere devices to place the goods and the proceeds where Sehlesinger alone should be' able to avail himself of the same, to the exclusion of his partners and the creditors of his firm. If this were really so, and Metzler was a party to this arrangement, and for that purpose, he acquired no valid title to the goods, and a subsequent sale by the other partners, in behalf of their firm, passed a valid title to Klein, whether he had notice of the fraudulent -sale to Metzler or not.
It is said that because the sales were separate, the second could not vitiate the first, which, it is said, was consummated. Before the court could act upon that hypothesis, it would be necessary that the court should decide that they were in truth separate, and not parts of one arrangement between Metzler and Sehlesinger. That, under the evidence, was a question of fact for the jury. ' The court was right in omitting to decide it. Charles Metzler had sworn that the ear muffs were bought after the plush, braid and binding, but were first delivered. The evidence tends to prove that all came to the store of Metzler & Co. at the same time, or about the same time. He nowhere says the ear muffs were not bought until the 12th, and if he had, the transactions are so connected with each other that such difference in date would not be decisive of the character of the transaction.
It is said some of this proof relates to acts done after Gradle signed the bond, and he should not be affected thereby. Gradle has, by the statute, merely the right to assert Metzler’s title and deny Klein’s, in the same way that Metzler might have done in the action of replevin. Whatever would be competent against Metzler in such case, was competent against Gradle, who has the privilege of standing on Metzler’s rights.
We do not deem it necessary to discuss in detail each of the rulings of the court in giving, modifying and refusing instructions asked by the parties, respectively. The two instructions given at the request of plaintiff we think were correct and appropriate, and not calculated to mislead, and when taken together, clearly eliminate the questions of law from questions of fact, and do not, as counsel suggest, leave questions of law to the jury. It was not error to modify, as was done, instructions marked “1st” and “4th,” given at defendant’s request. Instructions “2d,” “7th” and “8th,” given at the request of defendant, ought not to have been given. Instructions given at the request of defendant, and marked “3d,” “5th,” “6th,” “9th,” “10th,” “11th,” “12th,” “13th” and “14th,” presented to the jury, fully, the law of the case as to all the questions raised by instructions asked by defendant. Those asked by defendant, and marked “ 15th, ” “16th,” “17th,” “18th,” “19th,” “20th” and “22d,” were properly refused by the court. Each of them, except the 22cl, was clearly erroneous on its face, and that marked “22d” had no relation to the question at issue.
Where a purchaser, for value, of personal property capable of immediate delivery, suffers the same to remain in the possession of the vendor, and while so in the possession of the vendor a subsequent purchaser of the same property, for value, in good faith and without notice of the former sale, obtains the actual possession of the property in question, the title of the subsequent purchaser must be upheld,—not only as against the vendor, but also as against the first purchaser. Counsel for appellant, conceding this to be the general rule, strenuously insist that this case, by the proofs, is taken out of the general rule. The substance of the contention is, that by the proofs, Metzler was guilty of no improper delay in his measures taken to get possession. It is said, in substance, that the sale to Metzler was between four and five o’clock in the afternoon of the day; that the hour for closing business was six, and that soon after nine the next morning Metzler came for the goods, and hence he was guilty of no faulty delay. Without passing upon the question sought to be presented upon this hypothesis, it is clear that whether the supposed action be faulty or not, is a question of fact, which the circuit court had no lawful right to take from the jury. The court was not asked to charge that if Metzler used due diligence to acquire possession, his title should prevail. Aside from this, some of the proofs pointed to about the hour of noon on the 11th of January as the date of Metzler’s purchase, and the proof is not conclusive that he took any measures to gain possession before about noon of the 12th. Be this as it may, the instructions asked, which demanded of the court to rule that as a matter of law this case does not fall under the general rule of law mentioned, were properly refused.
Finding no material error in the rulings, the judgment is affirmed.
Judgment affirmed.