Montgomery v. Brush

Citations

• 121 Ill. 513
• 13 N.E. 230

Syllabus

<p>1. Trover—whether the action can be maintained. To maintain the ■action of trover, it must appear that the plaintiff had both the right of property and of possession, as against the defendant, at the time of the alleged conversion.</p> <p>2. The fact that the plaintiff’s cattle, at the time of their conversion by the defendant, were in the possession of an agent of the plaintiff, under a contract that such agent was to pasture and sell the same for the plaintiff, and of the proceeds pay him a certain amount and keep the balance for his compensation, will not defeat an action of trover by the plaintiff, for the con•version, the defendant having notice of the ownership of the cattle.</p> <p>3. Evidence—declaration of agent—whether admissible against his ■principal. An agent, having his principal’s cattle in possession under a con- ■ tract to pasture and sell them, and to pay the owner a certain sum, the agent to have all the proceeds over such sum, put them into the pasture of another, who claimed them under a contract of sale with the agent. It was held, in an action of trover by the principal, against the claimant, that what the agent said •as to his object in putting the cattle in the pasture at the time he did so, being a part of the res gestes, would be admissible in evidence on the part of the ■defendant, but that it was not competent for him to prove the statements of the agent, generally.</p> <p>4. Same—statements of third persons. On the trial of a case, the gen•eral statements of persons neither parties to the record nor in privity with the jparty against whom they are sought to be used, are not admissible in evidence.</p>