Sinamaker v. Rose

Mr. Justice Waterman delivered the opinion oe the Court. Appellant having failed to inform the jury as to the amount he received for appellee’s bedroom set which he had sold, the jury, from their knowledge of the worth of such articles, a knowledge all persons are presumed to have (Ohio & Mississippi Ry. Co. v. Irwin, 27 Ill. 178), may have thought .the same to have been worth at least $12.50; or they may have, under the circumstances of the tortious sale, appellee’s testimony, of what she had paid, and appellant’s telling her to go to hell, when, after such sale, she asked him what he liad done with her goods, treated such reply as an admission that nothing was due to him. Appellant did not, upon the trial, object that no proof of demand had been made; it is therefore questionable if anything more in this regard was necessary after the reply made by appellant. No demand is necessary where goods have been unlawfully converted. Wells on Replevin, Sec. 351; Hale v. Barrett, 26 Ill. 195. Proof of cii mmstances which show that a demand would have been urn vailing (as a refusal by the defendant to listen to one, or a st dement in advance that he will not deliver), is sufficient to xcuse a demand. Wells on Replevin, Sec. 373. Appellee was competent to testify as to the value of ordinary hou ihold goods, Leindberg v. Mackenheuser, 4 Ill. App. 603 It is true 1' at a set-off can not be allowed in an action of tort. For this re on, although the entire value of the goods may have be>. i only $200, and when appellant pays such value he may e entitled to $12.50 for storage, yet, he having tortiously co i rerted a. part of the goods, and refused to surrender am on the writ of replevin, in this action of trover his clai i for storage, which may arise when he pays for the goods, can not be set off against the claim in tort made and font I against him. The judgm it of the Superior Court is affirmed.