37 Ill. 442 | Ill. | 1865
delivered the opinion of the court:
The evidence in this case shows clearly that the parties owned the reaping machine in common. It is proved that Richard Evans, the son of the plaintiff below, lived with his father, who was old and intemperate, and, in conjunction with his brother Joseph, managed the farm and Ms father’s affairs. Two years before the commencement of this suit, Richard sold to Swartwout, the defendant below, an undivided half of the machine for twenty-five dollars, and received payment, and although Richard says, in his testimony, that his.father was dissatisfied with the bargain, yet, independently of Richard’s authority, the plaintiff must be considered as having ratified the sale. For it is shown that for two years the parties continued to use the machine as joint owners, Swartwout paying one-half of the repairs, and his rights as the owner of one-half being constantly asserted, and, so far as appears, never denied, until about the time of the commencement of this suit.
Swartwout, then, was entitled to the same possession and enjoyment of the machine as Evans, and could only be made liable for its conversion by proof that he assumed and exercised exclusive ownership, repudiating the rights of Evans. The plaintiff below sought to prove that fact by showing a demand and refusal. The only evidence upon that point was that of plaintiff’s son Joseph, who testified that his father demanded the machine of Swartwout, and that the latter refused to give it up, claiming to have bought it. But this same witness testified that his father owned the machine, and that he did not know how it had got to Swartwout’s house, nor did he know whether Swartwout had bought one-half of the machine. It is manifest, then, that Evans demanded, not the joint use and possession, as joint owner, but the machine as sole owner, and such a demand Swartwout was at entire liberty to disregard. Bell v. Shrieve, 14 Ill., 462. Evans should have demanded the equal enjoyment of the machine as joint owner, and if he demanded possession as sole proprietor, Swartwout was under no obligation to recognize a claim, where recognition might have been fatal to his own title. That such was the character of the demand is clear, not only from the manner in which it is stated by the witness, but from the fact that the plaintiff’s case proceeds upon the hypothesis of sole ownership. Besides the evidence of Joseph as above stated, the plaintiff introduces his other son, Richard, for the purpose of proving that although he sold one-half of the machine to Swartwout, he had no authority to do so, and that his father “ was dissatisfied, and said, defendant should not have it.” And not only did the plaintiff seek, by his evidence, to prove that he was sole owner, but in the instruction asked by him and given by the court, he submitted the case to the jury on that ground.
But even if plaintiff’s demand had been consistent with his rights, and been made as joint instead of sole owner, there is another objection to the demand, which, upon this record is fatal. There is nothing in the record to show that the demand was made before the commencement of the suit. The, transcript from the Justice was not filed in the Superior Court until several months after the trial, and although transcribed into the record, we find it impossible to tell when the suit was commenced. This point was raised by the defendant, on a motion made to the court after the plaintiff closed his evidence. The plaintiff’s attention was thus called to the defect in his evidence; and he failed to supply it. There is nothing which -would enable the jury to say whether the demand, of which the witness, Joseph Evans, testified, was made before or after the commencement of the suit.
The jury'found a verdict for the plaintiff for thirty dollars. In the conflict of evidence as to the value of the machine, we cannot say whether they considered themselves as finding the value of the whole or only one-half. From the mode in which the plaintiff submitted his case, it would be proper to presume that the verdict was for the value of the entire machine, but whether for the whole or the half, it is unsustained by the evidence, for the reasons given, and there must be a new trial.
This case is before us on an order for a re-hearing, and as the question has several times arisen in regard to the taxation of costs in such cases, we take occasion to say that the only additional costs proper to be taxed upon the re-hearing are the costs of the orders made necessary thereby, and costs of filing any papers incident to the re-hearing.
Judgment reversed.
