Piner v. Cover

Citations

• 55 Ill. 391

Syllabus

<p>1. Sale of chattels—what constitutes. Where a person purchased a brick kiln, the agreement being that the purchaser should take the brick and dispose of them, and apply the proceeds on debts of the vendor, it was held, in an action of replevin by the vendee against one who claimed to hold under an attachment against the vendor, it would tend to mislead the jury to instruct them that such a transaction did not amount to a sale. Such an agreement might amount to a sale, if the transaction was fair.</p> <p>3. Same—delivery of possession. On the sale of a brick kiln, it is not essential to the transfer of possession to the vendee, that he should remove the kiln from the ground; it is enough, if he exercise acts of ownership over it, to the exclusion of others—as in taking possession of the kiln on the ground where it stood, and selling brick therefrom.</p> <p>3. Instructions should be based upon the evidence.</p> <p>4. Instructions—obviating the error in one instruction, by another. An error in one instruction given to a jury may be cured by another, if it can be inferred the latter was understood by the jury as explaining and qualifying the former.</p> <p>5. Fraud—in what manner availed of. In an action of replevin by a vendee of chattels, against one who claims the property under an attachment against the vendor, the defendant may make proof (if fraud in the transaction of sale without that defense having been set up by the pleadings. Circumstances going to establish fraud in such cases are always admissible in evidence.</p>