138 Ill. App. 190 | Ill. App. Ct. | 1907
delivered the opinion of the court.
Appellees’ counsel contend that the alleged sale by Mrs. Perrigo was a conditional one, and that a demand for the cat before suing was essential, and say that the trial judge so held. That the presiding judge of the trial court held a demand necessary, we think apparent from propositions marked refused.
Mrs. Perrigo, appellant’s mother, was a mere naked bailee of the cat, without any authority to sell or dispose of it in any way, and appellee Welsh, at the time of her alleged purchase, knew that appellant was the owner of the cat and that Mrs. Perrigo had no authority to sell it. Knowing this, she sold a half interest in it to Mrs. Woodard, who also knew that Mrs. Perrigo had no authority to sell it.
The contention that the alleged sale by Mrs. Perrigo was a conditional sale is untenable. It was not, in law, any sale, absolute or conditional, and conveyed no title whatever. A conditional sale, like an absolute one, can only be made by the owner or by his or her authority. An unauthorized sale by a mere naked bailee is a wrongful conversion of the property, and the sale is void as to the owner. 3 Am. & Eng. Ency., 2nd ed., p. 754, and cases cited; Calhoun v. Thompson, 56 Ala. 166, 171; Grant v. King, 14 Vt. 367; Medlin v. Wilkerson, 81 Ala. 147; Swift v. Moseley, 10 Vt. 208; Lovejoy v. Jones, 30 N. H. 164; McGinn v. Butler, 31 la. 160; Hendrick v. Evans, 46 Mo. App. 313; Rankin v. Shepardson, 89 Ill. 445; Burton v. Curyea, 40 Ill. 320; Klein v. Seibold, 89 ib. 540.
In Hendrick v. Evans, supra, the court say: “Defendant contends that since plaintiff placed the property in the possession of his hired man, Abbott, and that he bought of -Abbott, honestly believing him to be the true owner, he should now be protected. This will not do. Abbott was a mere bailee, and that the relation does not authorize or empower him to convey a good title against the true owner is too plain to require discussion.”
In Fawcett v. Osborne, 32 Ill. 411, W. H. and F. Stevens, tanners, were bailees of -certain hides, to be tanned by them, and when tanned to be delivered to the plaintiffs. F. Stevens sold the hides to the defendants, who paid him for them. The court held the plaintiffs were entitled to recover, saying, among other things: “The defendants’ vendor had but a naked possession. This cannot prevail against the right of the real owner, who is entitled to follow his property and reclaim it wherever found. The buyer should have taken care that the title was in his vendor. He having no title, the defendants acquired none.” Ib. 428.
In Ashland Block Association v. Edward Thompson Co., 94 Ill. App. 501, goods were mortgaged by a person whom the court held to he a mere bailee, and the appellant purchased them at a foreclosure sale under the mortgage. The court held against the appellant, and said: “If the transaction was in fact a bailment only, then, whether that fact were known to appellant or not, the bailee is in law entitled to his goods as against appellant, to whom they were wrongfully conveyed by appellee.”
The contention that the appellees were, or either of them was, lawfully in possession of the cat, cannot be sustained. Both the appellees well knew that appellant owned the cat, and both knew that Mrs. Perrigo had no authority to sell it, conditionally or otherwise. The contrary is not claimed. Miss Welsh testified: “I told Mrs. Woodard that she must understand it was a possibility that Mrs. Perrigo would ask to have the cat back, if her daughter was not perfectly satisfied with her action in the matter, and Mrs. Woodard paid the money with that understanding of course.” The evidence also shows that Mrs. Woodard knew the cat belonged to appellant. Each of the defendants came wrongfully into the possession of the cat, and therefore no demand before bringing suit was necessary
“Where one’s property has been disposed of by the one having it in charge, without authority, the owner may bring replevin for it without a previous demand.” Coffey on Replevin, sec. 512, citing Trudo v. Anderson, 10 Mich. 357, and Ballou v. O’Brien, 20 ib. 304, which cases fully support the text.
In Clark v. Lewis, 35 Ill. 420, the defendant had purchased a horse from a pound-master who sold him without lawful authortiy. The owner of the horse brought suit in replevin against the purchaser. The owner recovered in the trial court, and the purchaser sued out a writ of error. It was contended that a proper demand should have been made before bringing suit, but was not, in respect to which the court say: “Plaintiff in error having acquired no title to the property by his purchase, his possession was wrongful. Being wrongfully in possession, a demand was unnecessary.” The case is cited with approval and the same rule announced in Tuttle v. Robinson, 78 Ill. 334. It was also so held in Oswald v. Hutchinson, 26 Ill. App. 273, Hartman v. Loptien, 93 ib. 472, and Schwamb Lumber Co. v. Schaar, 94 ib. 544.
Mr. and Mrs. Taylor each testified that the cat was worth $150. B. W. Stratton, who saw the cat at a national show, where he was one'of the judges, testified that he was worth $125; one witness testified that he was worth $130, and one $100. Mr. Taylor testified that when he called with the officer who had the writ, which was about 7 or 7:30 o’clock p. m., Mrs. Woodard told him, before he saw the cat, that he was “very sick and going to die, if not already dead,” and that he found him in Mrs. Woodard’s kitchen, dirty, vomiting, and with his nose on the ground, and unable to get up. After taking him to the hotel where witness was stopping, he called a veterinary, who arrived at the hotel about 10:30 in the morning, and treated the cat; but the cat died the next morning between' one and two o ’clock a. m. The veterinary testified that he made a post mortem and found a condition of inanition and starvation, resulting from an obstruction of the large intestine, producing blood poisoning. Appellant was entitled to recover as damages the difference between the value of the cat when Miss Welsh got possession of it, and its value when taken on the writ. At the latter time he was clearly of no value. In view of the' evidence we think $100 a fair estimate of the damages. Appellant’s counsel claim .that the damages should include the expenses of Mr. Taylor, incurred in trying to find the cat, etc., but this we cannot concede.
The ease was tried before the judge without a jury, and we can perceive no good reason for sending it back to the trial court for another trial, on probably the same evidence. The judgment will be reversed and judgment will be entered here in favor of the appellant and for $100 damages, appellant to recover her costs in this court and in the Superior Court of Cook county.
Reversed and judgment here.