#### Nellie B. Frame, Appellee, v. Harder’s Fireproof Storage & Van Company, Appellant.

Gen. No. 21,818.

(Not to be reported in full.)

Abstract of the Decision.

1. Trover and conversion, § 39 * —when evidence insufficient to sustain judgment for plaintiff. In an action for the conversion of a piano, brought by the owner and mortgagor thereof against a warehouseman with whom it had been stored and who had delivered it to the mortgagee, held that a judgment for the plaintiff could not be sustained, as the evidence showed that at the time of the delivery the plaintiff was in default in payment thereon to the mortgagee, and that the latter under the terms of the mortgage was therefore entitled to the possession.

2. Trover and conversion, § 37*—when burden of proof on bailee to prove paramount title of third person. While a bailee may not dispute the bailor’s title to the thing bailed, yet where the bailee *491has surrendered it to one having a paramount title thereto, he may prove such surrender as a valid defense to an action against him by the bailor for the conversion of the property, the burden being upon him to prove such paramount title in the party to whom the property had been surrendered.

*490Appeal from the County Court of Cook county; the Hon. S. N. Hoover, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.

Reversed with finding of facts.

Opinion filed October 10, 1916.

Statement of the Case.

Action by Nellie B. Frame, plaintiff, against Harder’s Fireproof Storage & Van Company, defendant, for the conversion of a piano. From a judgment for plaintiff, defendant appeals.

Robert W. Dunn, for appellant.

Alonzo M. Griffen, for appellee; William C. Meter, of counsel.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section section number,

Mr. Justice McDonald

delivered the opinion of the court.