#### William F. Sinamaker v. Mary Rose.

1. Demand iVhen Unnecessary.—No demand is necessary where goods have be . unlawfully converted.

2. Same—1 en Excused.—Proof of circumstances which show that a demand woi ¡ have been unavailing (as a refusal by the defendant to listen to one, • r a statement in advance that he will not deliver), is sufficient to ex ;nse a demand.

3. Witness -Competency as to Value of Household Goods.—The owner of houst hold goods is a competent witness to testify as to their value.

4. Set-Off—.fot Allowed in Actions of Trover.—A set-off can not be allowed in an aci ion of tort.

Trover.—Appo il from the Superior Court of Cook County; the Hon. Henry V. Freeman, Judge, presiding. Heard in this court at the October term, 1895.

Affirmed.

Opinion filed January 22, 1896.

Statement of the Case.

This was an action of replevin commenced before a justice of the peace on the 13th day of December, 1894. The goods were not taken on the writ, and a judgment in trover was had before the justice, and appealed by appellant to the Superior Court, where the case was tried, and resulted in a verdict in favor of the plaintiff for $200, on which judgment was entered, and the defendant brings the cause to this court for review.

On September 6, 1893, appellee bought a bill of household goods of the appellant, amounting in all to the sum of $120.20.

On February 19, 1894, she stored the goods purchased, with others, with appellant, and was to pay $2.50 per month for the storage thereof.

Appellee paid appellant, all told, the sum of $132.70.

The storage charges amounted to $25. Appellant, by mistake, sold a bedroom set belonging to appellee.

The jury was asked: “Do you find that the plaintiff was indebted to the defendant for the storage of the goods in question at the time this suit was commenced ? ”

*119To which it answered, “lío.”

The defendant asked that the following be given as an instruction to the jury:

“ The court instructs the jury that if they believe from the evidence that the plaintiff, on December 13, 1894, owed the defendant for the storage of the goods in question, and the same has never been paid or tendered to the defendant, then the jury should find for the defendant.”

The court modified said instruction by inserting after the word “ question ” the words, “ over and above all just credits, deductions and set-offs.”

Appellant claims and insists that the giving of this instruction was error of a very grave character, for two reasons:

“ First. It did not enunciate a correct rule of law.

Second, Set-off can not be pleaded in an action of trover.”

S. G. Abbott, attorney for appellant.

C. A. Surine, attorney for appellee.

Mr. Justice Waterman

delivered the opinion oe the Court.

Appellant having failed to inform the jury as to the amount he received for appellee’s bedroom set which he had sold, the jury, from their knowledge of the worth of such articles, a knowledge all persons are presumed to have (Ohio & Mississippi Ry. Co. v. Irwin, 27 Ill. 178), may have thought .the same to have been worth at least $12.50; or they may have, under the circumstances of the tortious sale, appellee’s testimony, of what she had paid, and appellant’s telling her to go to hell, when, after such sale, she asked him what he liad done with her goods, treated such reply as an admission that nothing was due to him.

Appellant did not, upon the trial, object that no proof of demand had been made; it is therefore questionable if anything more in this regard was necessary after the reply made by appellant.

*120No demand is necessary where goods have been unlawfully converted. Wells on Replevin, Sec. 351; Hale v. Barrett, 26 Ill. 195.

Proof of cii mmstances which show that a demand would have been urn vailing (as a refusal by the defendant to listen to one, or a st dement in advance that he will not deliver), is sufficient to xcuse a demand. Wells on Replevin, Sec. 373.

Appellee was competent to testify as to the value of ordinary hou ihold goods, Leindberg v. Mackenheuser, 4 Ill. App. 603

It is true 1' at a set-off can not be allowed in an action of tort.

For this re on, although the entire value of the goods may have be>. i only $200, and when appellant pays such value he may e entitled to $12.50 for storage, yet, he having tortiously co i rerted a. part of the goods, and refused to surrender am on the writ of replevin, in this action of trover his clai i for storage, which may arise when he pays for the goods, can not be set off against the claim in tort made and font I against him.

The judgm it of the Superior Court is affirmed.