#### Max Rosenfeld, Plaintiff in Error, v. John B. Ehrhart, Defendant in Error.

(Not to he reported in full.)

Error to the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1916.

Affirmed.

Opinion filed November 13, 1916.

Statement of the Case.

Action of replevin by Max Rosenfeld, plaintiff, against John B. Ehrhart, defendant, to recover certain merchandise, fixtures, etc., used in connection with the grocery store previously operated by plaintiff. From a finding and judgment in favor of defendant, plaintiff brings error.

Terry, Gueltig & Powell, for plaintiff in error.

*618Warnook, Williamson & Burroughs, for defendant in error.

Abstract of the Decision.

1. Contracts, § 113 * —When party is estopped to claim intoxica» tion at time of signing. The contention by a party to a contract that he was intoxicated and did not know what he was signing when he executed same cannot avail him when on the next day after executing the contract he voluntarily took steps to carry out its provisions.

2. Appeal and error, § 1414*—when finding of trial judge will not be disturbed. Where a jury has been waived, the finding of the trial judge is entitled to the same weight as the finding of a jury on the controverted questions of fact, and unless such finding is against the manifest weight of the evidence it should not be' disturbed.

3. Sales, § 210*—when evidence is sufficient to show delivery of personalty. On an issue as to the sale and delivery of a stock of goods and furniture in a store, horses, etc., held that the finding by the court trying the case without a jury that the property was in fact delivered was fully warranted by the evidence.

4. Sales, § 182*—when bill of sale is unnecessary. A bill of sale is not necessary to pass the title to personal property which is sold and possession delivered.

5. Sales, § 180*—what is sufficient evidence of intention to effect a sale of personalty. Actual delivery of possession of personal property is usually of itself sufficient evidence of intention to effect a sale thereof.

6. Appeal and error, § 1713*—when assignment of error is waived. An assignment of error which is not argued in the brief is waived, under the rules of this court.

7. Appeal and error, § 1466*—when judgment will not be disturbed because of the admission of incompetent evidence. Even though the trial court may have admitted incompetent evidence on the hearing, yet if there be sufficient competent evidence in the record to sustain the court’s finding and judgment, the judgment should not be disturbed on that account.

*

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

Mr. Justice Boggs

delivered the opinion of the court.