Walker v. Collier
| Decision Date | 30 April 1865 |
| Parties | HENRY C. WALKER et al.v.THEODORE COLLIER et al. |
| Court | Illinois Supreme Court |
WRIT OF ERROR to the Circuit Court of Marshall county; Hon. S. L. RICHMOND, J.
Replevin by Collier et al. v. Walker et al., for a lot of cordwood alleged to have been sold by one Sloover both to the plaintiffs and to the defendants. The testimony turned on the completeness of the delivery. Sloover testifying that though he had hauled the wood to Walker's place on account of a contract by which 125 cords were to be applied in payment for two teams, yet it was understood that no part of it was to be deemed delivered until it was all hauled and measured, and that before it was so measured he sold and delivered it to plaintiffs. McDonald & Mosier on the other hand testified for the defendants that Sloover when hauling the wood spoke of it as a delivery of Walker's wood. There was evidence also of a rescinding of the sale as to one of the teams, or that it was retaken by the vendors, defendants below, under a chattel mortgage held by them against Sloover.
The defendants asked the following instructions, which the court refused and the defendants excepted:
That if the wood in controversy was by Sloover mixed willfully with Walker's wood and confused the same, then the wood would all belong to Walker, and Sloover could not sell it.
That the fact, if proved, that Walker took the team mentioned from Sloover on a mortgage, has nothing to do with the merits of this case, and should not be considered by them.
That no actual measurement of personal property sold is necessary to pass the title. It is enough if the goods are identified and the control of the same given to vendee.
That if the jury believe, from the evidence, that twenty-five cords of the wood had been delivered to Walker on the first contract, no subsequent contract would revest the title in the wood in Sloover, without a delivery with all the forms necessary in any ordinary sale.
When the seller has performed everything that is required of him as to a certain portion of the thing sold, but something still remains to be done as to the rest, the portion in regard to which the seller has performed all his duty becomes the property of the purchaser, but the portion in respect to which something material is yet to be done still belongs to the seller.
Defendants also asked the following instruction:
If the jury believe, from the evidence, that Sloover, unconditionally, delivered to Walker the wood in controversy, upon a contract therefor between them, such wood at once became the property of Walker, whether it had been measured or not.
The court refused to give this, as asked, but added thereto as follows:
Unless the contract of sale required the wood to be measured, or some other material act to be done, before the wood should become the property of Walker.
And then gave it as modified, to which defendants excepted.
The court also instructed the jury, on the part of defendants below, as follows:
1. If the jury believe, from the evidence, that Sloover bought a young team of Walker on the 18th of December, 1863, and as part payment agreed to deliver twenty-five cords of wood within thirty days thereafter, and that Sloover did deliver the twenty-five cords of wood, and that said twenty-five cords is part of the wood in controversy, he, Sloover, thereby lost all control and ownership over said wood, and as to said wood the jury must find for defendant.
2. That if the jury believe, from the evidence, that Sloover, in January, 1864, bought of Walker another team for which he was to give one hundred cords of wood, to be delivered by the 15th of May or June following, and that Sloover did deliver any portion of said wood upon said contract to said Walker, all of said wood so delivered at once became the property of Walker, and as to all such wood, the jury should find for defendants.
3. If the jury believe, from the evidence, that Sloover, unconditionally, delivered to said Walker said wood in controversy on a contract between them, such wood at once became the property of Walker, whether measured or not, unless the contract required the wood to be measured, or some other material act to be done, before it became the property of Walker.
3. If the jury believe, from the evidence, that Sloover delivered to Walker the wood in question, upon a contract for the same, then the property therein would pass to Walker, and could not be taken from him, by Walker...
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