Bradley v. Parks

• Decision Date: 30 September 1876
• Citation: 83 Ill. 169,1876 WL 10310
• Parties: TIMOTHY M. BRADLEY, for use, etc.v.JOHN PARKS et al.
• Court: Illinois Supreme Court

83 Ill. 169

1876 WL 10310 (Ill.)

TIMOTHY M. BRADLEY, for use, etc.

v.JOHN PARKS et al.

Supreme Court of Illinois.

September Term, 1876.

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

Messrs. SHOREY & SHAFFNER, for the appellant.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The questions presented by this record are precisely the same as if they had arisen on the trial in the action of replevin instituted by Parks against Andrews & Kuhn, since the pleas set up that the replevin suit was not tried on its merits, and claim title and the right to the possession of the property in Parks.

The facts, in brief, are: In March, 1872, Parks pledged the property in controversy (a diamond pin) to one Lipman, to secure the payment of $100 and interest to accrue thereon. Afterwards Parks called on Lipman to redeem the pin. Lipman demanded $115, and Parks tendered him $110. Parks thereupon departed, leaving Lipman in possession of the pin. In June, 1873, a Captain Blake pledged the same pin to Andrews & Kuhn, to secure the payment of $165, and some three months afterwards he sold them the pin for this sum and $10 in addition. There is no evidence, that we have been able to discover, even tending to show that Andrews & Kuhn had reason to suppose the pin did not belong to Captain Blake, or that they acted in bad faith in receiving it and advancing money upon it. On the 7th of January, 1874, Parks, without having made any previous demand for the pin, replevied it.

The court, at the request of appellees, gave this instruction to the jury:

“The court instructs the jury, that if they shall believe, from all the evidence before them, in this case, that the sale of said pin, by Lipman to Blake, was a sham and a fraud, and if they shall also believe, from all the facts proven in this case, that Kuhn, one of the parties for whose use the suit is brought, knew or had good reason to believe that Blake came by the pin in violation of the rights of the defendant Parks, through a fraudulent purchase thereof, and with such guilty knowledge purchased the pin from Blake, then they should find for the defendants.”

This instruction was erroneous and calculated to mislead the jury, because there is no basis in the evidence preserved in the record on which to predicate it. It does not appear how Blake obtained the pin from Lipman; and there is no evidence of any circumstance from which Kuhn or any one else...