Lapp v. Pinover

McAllister, J. The sale and delivery of the goods in question, June 24, 18S4, by the plaintiffs to Oarinder, vested in the latter the title to the goods. And the re-sale of them back to plaintiffs, July 22, 1884, by Oarinder, being without any change of possession of the goods, would, if entirely formal in other respects, be void as to iona fide creditors, purchasers or pledgees, without notice. Ketchum v. Watson, 24 Ill. 591; Lewis v. Swift, 54 Ill. 436; Thompson v. Wilhite, 81 Ill. 356; Lefever v. Mires, 81 Ill. 456; Gradle v. Kern, 109 Ill. 557; Bastress v. Chickering, 18 Ill. App. 198. The instruction given by the court to the jury set out in the statement of the case, purports to instruct the jury as to all the elements of the case essential to a recovery. That instruction contains no hypothesis as to whether the plaintiffs reduced the goods to possession, upon the re-sale of them; or whether the defendants had notice of the arrangement that Oarinder was holding them as upon a consignment from plaintiff's. The defendants claimed the goods as purchasers from Oarinder in good faith and without notice. That was one of the issues upon the trial as to which the evidence was conflicting, and it should have been submitted to the jury in that instruction. It is essential to the right of recovery in trover, that the plaintiff had the right to an immediate possession of the goods at the time of the conversion. Eisendrath v. Knauer, 64 Ill. 396; Calwell v. Corwin, 9 Yerg. 199; Burton v. Tunnehill, 6 Blackf. 470; Redman v. Gould, 7 Blackf. 361; Lewis v. Mobley, 4 Dev. & B. 323; 1 Chit. Pl. 151; 2 Greenl. Ev. Sec. 636. The instruction under consideration wholly fails to embody any proposition of that kind. It was radically defective; and there being a conflict of evidence upon the question of notice to the defendants, the judgment must be reversed and the cause sent back for trial. Reversed and remanded.