Swartwout v. Evans

• Decision Date: 30 April 1865
• Citation: 37 Ill. 442,1865 WL 2843
• Parties: HENRY L. SWARTWOUTv.JOSEPH EVANS.
• Court: Illinois Supreme Court

37 Ill. 442

1865 WL 2843 (Ill.)

HENRY L. SWARTWOUT

v.JOSEPH EVANS.

Supreme Court of Illinois.

April Term, 1865.

APPEAL from the Superior Court of Chicago.

This was an action of trover by Evans against Swartwout for a mowing and reaping machine. The suit was first tried before a Justice of the Peace of Cook county, and by appeal removed to the Superior Court, where there was a judgment for the plaintiff for thirty dollars.

The facts appear in the opinion.

JOHN W. WAUGHOP, for appellant.

E. P. EVANS and A. GARRISON, for appellee. Mr. JUSTICE LAWRENCE 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 his 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 demand Swartwout was at entire liberty to disregard. Bell v. Shrieve, 14 Ill., 462. Evans should have demanded the equal enjoyment of the...