Edward Thompson Company, Plaintiff in Error, v. Alexander Collins et al., Defendants in Error.

Gen. No. 14,654.

Replevin—when lies "by vendor in conditional sale contract. If merchandise is sold under a conditional sale contract, title being retained by the vendor until payment in full shall be made, failure to make such payment entitles such vendor .to maintain replevin to recover such merchandise.

*546Replevin. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.

Reversed.

Opinion filed November 19, 1909.

Rehearing denied December 3, 1909.

Martin & Martin, for plaintiff in error.

George I. Haight, for defendant in error; B. A. L. Thomson, of counsel.

Mr. Justice Mack

delivered the opinion of the court.

The plaintiff replevied a set of the American English Encyclopedia of Law, 2nd edition, delivered to defendant Collins under a conditional sale contract. The title was retained until payment in full should he made. Nothing has ever been paid for the books, which were in the possession of defendant Thomson, who was directed in writing by Collins to deliver them to plaintiff and on demand refused to do so.

These facts established complainant’s right to possession as against Collins and those claiming under him other than bona fide purchasers or attaching or execution creditors. The burden at least of going forward with proof to bring himself within the excepted class devolved on defendant Thomson. To sustain his claim, he offered in evidence an uncertified copy of a justice of the peace execution against the goods of Collins and a receipt purporting to be signed by a constable, reading:

“$38. December 16,1906.

Received of B. A. L. Thomson, thirty-eight dollars for thirty-six volumes books, American and English Encyclopedia of Law, one waste basket, one table and one chair, sold this day by virtue and under ¿n execution issued. Judgment. T. O’Leary vs. Alexander Collins, of date November 24, 1906. $200 and costs, case No. 13,217.

A. C. Stayer, J. P.

Henry A. Johnson,

County Constable.”

*547No other proof of any judgment against Collins was made.

Plaintiff duly excepted to the overruling of its objection to this evidence.

In our judgment the evidence did not present even a prima facie defense and the finding and judgment for the defendant were without any basis in the evidence.

The judgment will be reversed and, the case having been heard without a jury, the court will enter a finding of fact that the defendants were guilty and that the right of property is in the plaintiff and judgment thereon.

Reversed.