Sutherland v. Brace

• Decision Date: 06 April 1896
• Docket Number: 256.
• Citation: 73 F. 624
• Parties: SUTHERLAND v. BRACE et al.
• Court: U.S. Court of Appeals — Seventh Circuit

73 F. 624

SUTHERLAND v. BRACE et al.

No. 256.

United States Court of Appeals, Seventh Circuit.

April 6, 1896

Tomkins & Merrill (T. A. Moran, of counsel), for plaintiff in error.

Lamoreaux Gleason, Shea & Wright, Brossard & Collignon, and Olin &amp Butler, for defendants in error.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

SHOWALTER Circuit Judge.

Plaintiff in error has moved for a rehearing in this cause, and, on that motion, elaborate printed arguments have been filed and considered. The strong insistence is that the two concluding paragraphs of the contract, as quoted in the opinion of this court, create an equitable charge, in distinction from a lien at law, wherefore the action of replevin, which depends on the legal right to possession, cannot be maintained. As between the parties, a delivery is not essential to the transfer of title to a chattel, unless made so by the terms of the contract. The title passes from vendor to purchaser when the bargain is complete, unless, by the terms of the bargain, it is not to pass until the happening of some event in the future. Whenever, in view of the contract, the case stands so that the legal title and right of possession cease in one contracting party, and vest in the other, the latter after demand by himself and refusal by the former, may maintain replevin for the chattel in question, if there be any statute authorizing that form of procedure where the original taking was not wrongful. In such case the refusal to deliver, or the persistent retention after demand, is in the nature of a wrong. The contract has so far affected the status of the chattel as to vest the plaintiff with the legal right to possession, and this right is appropriately asserted on the law side of the court, and in a trial by jury. In Benj. Sales (Ed. 1892, by the Bennetts), it is said on page 308, 'In a sale of a portion of a larger mass, the whole remaining in the possession of the vendor, with a right and power in him to make a separation, both upon principle and the weight of authority, no title passes until that be done so as * * * to enable the vendee to maintain trespass, trover, or replevin against the vendor;' meaning that, when the condition precedent to the vesting of title has been performed, replevin will lie, as a matter of course: provided, always, there be a statute authorizing replevin in a case where the original taking was not wrongful, or that at common law a wrongful detention be tantamount to a wrongful taking. Said the supreme court of Illinois in Rhea v. Riner, 21 Ill. 530:

'At the common law a delivery of possession was not necessary to pass the title to chattels from the vendor to the purchaser. To complete the purchase, and vest the title in the buyer, it was only necessary that the terms of the sale should be complete, and the property sold specified, and separated from other property of the same kind, where it was incapable of identification. When this was done by the parties the sale was complete, and the title to the property became vested in the purchaser.'

In that case plaintiff and defendant agreed to swap horses. The former delivered his to the latter. The animal of defendant was to be delivered to plaintiff at a future day. Plaintiff made demand at the appropriate time, but defendant refused to deliver. Held, that...