Ditto v. Pease

Me. Justice Hokton delivered the opinion of the court. Upon the trial of this cause appellees offered no testimony, and there is no testimony to support the fourth and fifth pleas. Appellees rely entirely upon the alleged lack of testimony to support appellant’s claim, i. e., they depend for success upon the weakness of appellant’s case. The only testimony which it is claimed tends to show any right, title or interest in appellees, or either of them, in or to the property in question, is the fact that a deputy sheriff took such property upon what purported or was claimed to be a replevin writ. No such writ is offered in evidence. It does not appear who the parties thereto were, if there was such a writ, or whether the sheriff had turned such property over to some claimant, and if so, to whom, before it was taken under the writ in the case at bar; or whether the sheriff had or represented any title to or interest in said property. The mere fact that a deputy sheriff took the property upon what purported to be a writ of replevin, without producing such writ and without any testimony as to whether it was issued by a court having jurisdiction, or as to any other fact in regard to it, is insufficient to support any title or claim to, or any right to the possession of the property in question. There is no evidence in this case tending to establish any right, title or interest in or to said property, or any part thereof, in the other appellees, or either of them. The question then is: Had the appellant such an interest in, or right to the possession of, the property in Question, that he can maintain replevin therefor against a stranger ? Under the statute of Illinois, the plaintiff in a replevin suit must show that as to the goods in question he is “ the owner or the person entitled to the possession” thereof. Rev. Stat., Chap. 119, Sec. 1. He is not, however, in all cases required to show that he is entitled to the possession as against all the world, but only as against the defendant in the replevin proceeding. He may not be entitled to the possession as against the owner, but at the same time he may be entitled to such possession as against a stranger or wrongdoer, or as against all the world except the owner. There are cases, also, where either the owner or the party in possession may maintain the proceeding. And in. some cases the party in possession may maintain replevin against the owner. “ A mere servant who has possession of goods by delivery from his master, which the master may at/ any time ■ put an end to, has not such property or right of possession as will enable him to sustain” replevin. Appellees quote, and place great stress upon this rule, and nearly or quite all the cases they cite upon this branch of the case are to the same effect, and in support of this rule. The difficulty in applying this rule arises when it is sought to determine who is a “ mere servant.” “ The line of demarcation between the relation of principal and agent, and that of master and servant, is exceedingly difficult to define. * * * The true distinction is to be found in the nature of the undertaking, and the time and manner of its performance. * * * Agents, as a rule, are employed* rather as particular occasion may require, than for fixed periods; and receive their compensation rather in fees and commissions than in fixed wages or salary.” Mechem on Agency, Sec. 2. Other text writers .are the same in substance. Appellant was in possession of the goods in question under and by virtue of the mortgages mentioned, by direction of the mortgagees. ■ His possession, however, was not exclusively for or in the interest of the mortgagees. He had a duty to perform to, and in the interest of, the mortgagor. The mortgagees could not have compelled him to surrender possession without paying or tendering to him such sum as he had properly expended in the care and protection of the property, as well as his legitimate fees or charges for services. He was not a “ mere servant.” The case of Fullerton v. Morse, 162 Ill. 43, is cited as being “ on all fours ” with the case at, bar. In that case the only interest or title which the plaintiff had in or to the property replevied or the possession thereof was, that he had been authorized by the mortgagee to take possession of the property under the mortgage for condition broken. He was not in possession of the property or any part of it, had not paid or incurred any expense on account of it, had no personal interest' in it, had done nothing, in regard to it except to make a demand in writing for its possession,“ and therefore was. not responsible for it to anybody,” as the Supreme Court says. And further, in that ease it was shown that the defendant, as a constable, had levied upon and was in possession of the goods. The court says (p. 45): “ He was a constable de jure, his executions were regular, and the mortgagor had such an interest as made them liable to the levy.” We need not further examine the Fullerton ease to show not only that it is not “ on all fours ” with the case at bar, but that, when the facts in the two cases are considered, the opinion of the Supreme Court has. but little, if any, application to the case at bar. We are of the opinion that appellant was more than a mere servant,” and that, he had such an interest in, and right to the possession of the property in question, that he can maintain this suit. The point as to “ cross-replevin ” is not before us under the testimony. The judgment of the Superior Court will b.e reversed and the cause remanded. Mr. Justice Shepard. I think that under the evidence, Ditto was a mere servant of the mortgagees and had no interest, legal or equitable, in the property, and was not entitled to the possession thereof within the meaning of the statute, and therefore not entitled to maintain replevin.