#### Charles E. Bartley et al. v. William C. Rogers.

1. Trover—Where It Will Lie.—A, having agreed to build a house for B, contracted with O for materials which were by C delivered on the lot of B, but in no way affixed to the premises; thereafter A and C, by mutual agreement, canceled such contract and A told O to remove- , such materials from said premises. O attempted to do this, but was prevented by B, who took possession of such materials and made them a part of his house. Held, that trover will lie against B for the value of the iftaterials.

Trover.—Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge presiding. Heard in the Branch Appellate Court at the October term, 1901.

Affirmed.

Opinion filed November 11, 1902.

Aaron Heims, attorney for appellants.

R S. Ludington, attorney for appellee.

Mr. Presiding Justice Waterman

delivered the opinion the court.

This case was tried upon a stipulation of facts. The question of law thereby presented is: A, having agreed to build a house for B, contracted with C for materials which were by C delivered on the lot of B, but in no way affixed to the premises; thereafter A and 0, by mutual agreement, canceled such contract and A told 0 to remove such materials from said premises. 0 attempted to do this, but was prevented by B, who took possession of such materials and made them a part of his house. 0 thereupon suecl B for their value. Can C compel B to pay the value of the materials he has so used ?

In an action of trover the declaration proceeds upon the theory that the defendant came lawfully into the possession of goods lost by the plaintiff and has converted them to his own use. The facts of this case fit a declaration in trover.

The plea of the defendants, appellants, is that by virtue of the mechanics’ lien law of this state, C had a lien upon the premises of B for the amount due to him, C, for such *165materials, and therefore, as soon as the materials were delivered they became the absolute property of B.

If the contention were that so long as 0 had such lien the materials could not be removed from the premises, it might have force; but 0 and A, by canceling the sale and agreeing to the return of the materials, terminated the lien. We see no reason why 0 might not, by agreement with A, rescind the sale, return the materials and supply in their stead other articles, perhaps better and more-suitable.

Appellants contend that the materials were sold upon the credit of “ the building.” The stipulation contains no such statement, neither is it to such effect.

In Streator Works v. Coe, 53 Ill. App. 483, the vendor, C, had begun an action of assumpsit to recover the price of brick sold to B, thus affirming the sale. While such suit was pending, C began an action of replevin for the brick. There had been no agreement to cancel the sale and "the court say, as is manifest, “that there was no right of rescission.”

The case of White v. Miller, 18 Pa. St. 52, is based upon the fact that the lumber in that case “ was furnished on the credit of the building.” The statements in Phillips and Boisot on Mechanics’ Liens are put upon the condition of a credit extended to the building.

As before said, such is not the fact in this case. This case is to be decided upon the facts of the stipulation and not upon conjectures outside thereof.

The judgment of the Superior Court is affirmed.