Mathews v. Cowan

Citations

• 59 Ill. 341

Syllabus

<p>1. Sale oe chattels—delivery—trover—case. Where a person sold to another a quantity of flour, for cash, to be delivered by a particular day, and a portion was delivered and paid for previous to that day, and the balance was delivered on the last day for delivery, which was on Saturday, and on its delivery the purchaser drew a check on a bank, but on being presented on the same day, it was dishonored, and the declaration avers that the delivery was obtained by fraud, on a trial in such a case, it is error to instruct the jury that if there was such fraud as would allow the seller to maintain trover or case against the buyer and his partner who held the flour, a design to defraud the seller must have existed when the purchase was made.</p> <p>3. Coktbact—minor. Where a minor makes such a purchase, and procures the delivery by fraud, he will be liable as in tort. The mere fact that he made the contract, and by fraudulent means obtained possession of the property, will not shield him from liability to suit, in case or in trover.</p> <p>8. Checks —fraudulent. Where a person draws a check on a person in whose hands he has no funds, and who, he has no reason to believe, will honor the check, the drawer is guilty of a fraud, and in such a case as the present, it is error to refuse to so instruct the jury.</p> <p>4. Sale—payment. Where property is sold, to be paid for on delivery aud it is delivered, and the purchaser, refusing to make payment, appropriates the property to his own use, trover will lie. In such a sale, payment is a condition precedent; but if the seller deliver fully aud unconditionally, lie thereby waives the condition of precedent payment, and the right of property passes to the purchaser; but if there is no waiver, it is otherwise, aud the rule does not apply where the goods are delivered with the expectation of simultaneous payment, and the purchaser holds the property and refuses to pay—that amounts to a conversion. A check not drawn against funds, is