delivered the opinion of the court.
The National Bond and Investment Company (not inc.), a copartnership consisting of Melville N. Rothschild and John L. Little, filed a statement of claim in a fourth-class tort case in the municipal cоurt of Chicago against' Paul Zakos and G-eorge C. King, claiming that defendants had converted a Ford touring car to their own use upon which the plaintiffs had a valid chattel mortgage. There wаs a trial before the court without a jury and a finding in favor of plaintiffs. The damages were fixed at the amount unpaid under the chattel mortgage, viz.: $452.52. Judgment was entered on the finding and Zakos prosecutes this appeal.
The record discloses that plaintiffs held a chattel mortgage on a Ford touring car, the mortgage having been given by one Frank Mattley to secure his notes for $452.52, being a part of the purchase price of the car; that the mortgage was duly executed, acknowledged and recorded in the recorder’s office of Cook county, Illinоis; that about six weeks thereafter the. bailiff of the municipal court levied an execution on the car under a judgment obtained against Mattley by one Sugle. The bailiff sold the automobile tоgether with other personal property to Zakos for $385. Some time thereafter plaintiffs learned of this fact and brought an action of replevin in the municipal court against Zakos. The automobile was not obtained on the writ and plaintiffs filed a statement of claim in trover. The case was tried October 8, 1921, before the court upon issues joined and at the closе of plaintiffs’ case the court, on motion of the defendant, found the defendant not guilty and entered judgment in favor'of the defendant for costs. Plaintiffs prayed and were allowed an aрpeal to this court and time was fixed for the filing of an appeal bond and bill of exceptions, but the appeal was never perfected.
In the instant case the record disсloses that in the first suit the court rendered judgment in favor of the defendant on the ground that plaintiffs failed to prove a demand before bringing the suit. The case at bar was commenced January 24, 1922, and after the judgment in the first suit and before the filing of the present suit plaintiffs made a demand for the automobile on the defendant, which demand was refused. Some contention is made by the plaintiffs that the two suits were not the same; that, the plaintiff in the first suit was the National Bond & Investment Company, a corporation, and that the statement of claim was in trover, while in the instant case the charge is trespass on the case and trover. This is a fourth-class case and it is perfectly clear, upon a consideration of the record, that the two cases are thе same in substance.
I I
1. The defendant contends that the chattel mortgage was invalid because the evidence fails to show that it was acknowledged and recorded. We cannot understand how counsel can seriously make such a contention, because the undisputed evidence is that the mortgage was acknowledged and recorded and that it was offered and received in evidence without any objection. Making such an argument in this court in the face of evidence to the contrary, to say .the least, is of no assistance to this court in detеrmining the issues presented for review.
2. Defendant further contends, as we understand it, that the demand made on him for the Ford was of no avail because the evidence shows that at the time such demand was made he did not have possession of the automobile. The evidence shows that the car was sold by the bailiff at public auction; that the defendant made the highest bid, $385, and that the сar was sold to him and he paid the bailiff for it. The defendant’s testimony, to the effect that he acted for the other defendant, King, who was not served, and that the money belonged to King, would not warrant us in holding that the automobile was in fact sold to King and not to Zakos. The court saw the defendant testify and found that the sale was made to him, and we think the finding is warranted by the evidence. The fact that the evidence shows that the defendant did not have the automobile at the time the demand was made upon him for it can be of no benefit to the defendant. It only goes to show that nо demand was necessary at all because under the law, in an action of replevin or trover, no demand is necessary before bringing suit where the evidence discloses that such a demand would have been unavailing. The object of a demand is to afford the defendant an opportunity to restore the property to the one entitled to possession without being put to the expense and annoyance of litigation. But where it appears that the defendant either before the action was instituted or upon the trial contests the plaintiff’s rights upоn the merits, or where it appears that a demand would have been of no avail, then none is required, for the law never requires the doing of a useless thing. Wells on Replevin, sec. 373; Cranz v. Kroger,
3. The defendant further contеnds that the judgment is wrong because the record fails to disclose any evidence upon which to base the damages awarded; that in such case “the measure of damages is the market value' of the chattel converted at the time of the conversion”-; that the only evidence of value was the testimony of one witness to the effect that a new Ford car purchased May 5, 1921, and used with ordinary care for about six weeks would be worth about $400. Counsel contends that this evidence was' improperly admitted because nothing appears in the record to show that the car was used with ordinary care, but that for aught that appears it might have been in “twenty collisions.” It is sufficient to say that no such objection was made upon the trial when the evidence was offered, and it is an elementary rule that points not made in the trial court cannot be urged for the first time in this court. There is no merit in the contention made, but the judgment entered is wrоng because the most that plaintiff can claim is the value of the car at the time it was converted, and his witness testified it was worth about $400, while the judgment is for $452.52, the amount remaining due on the chattеl mortgage notes. It is obvious that judgment could not be rendered for more than the value of the car at the time it was converted.
4. The defendant further contends that the judgment rendered in the first case was res judicata, and this was set up in defendant’s affidavit of merits. In reply to this contention counsel for plaintiffs take the position that since it appears they were defeated in the first action for the sole reason that they failed to prove a demand prior to the filing of the suit, this situation is similar to a suit which has been prematurely brought and for that reason deсided adversely to them; that in such case the plaintiff is not bairred if he sues a second time. And in support of this the cases of Bacon v. Schepflin,
Reversed.
Taylor, P. J., and Thomson, J., concur.