{
  "id": 5273350,
  "name": "Robert M. Piner v. Eli Cover",
  "name_abbreviation": "Piner v. Cover",
  "decision_date": "1870-09",
  "docket_number": "",
  "first_page": "391",
  "last_page": "393",
  "citations": [
    {
      "type": "official",
      "cite": "55 Ill. 391"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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    "simhash": "1:68c186a86c6752b9",
    "word_count": 890
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  "last_updated": "2023-07-14T15:50:07.666540+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Robert M. Piner v. Eli Cover."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Breese\ndelivered the opinion of the Court:\nThis was an action of replevin, brought to the Knox circuit court, for a brick kiln, which the plaintiff claimed to have purchased from Milton Grim, on the fourteenth day of June, 1869, and which the defendant claimed to hold, as constable, on a writ of attachment issued against Grim, on the thirty-first of July, 1869, and levied on the fourteenth of August, 1869.\nExceptions were taken to the instructions given on behalf of the defendant, and among them the second and third. The second instruction is as follows:\n\u201c The jury are instructed, if they find from the evidence that the arrangement made between Finer and Grim was that Finer should take the brick and dispose of the same, and apply the proceeds on debts of Grim, that, in law, does not amount to a sale, and in that case the brick were liable to be taken on the attachment.\u201d\nThis instruction ivas calculated to mislead, as such an agree! ment might amount to a sale, if the transaction was fair. But the principal objection to it is, there is no evidence on which to base it.\nThe testimony, both parol and in writing, is to the point, that whatever debts of Grim, Finer might pay, should be credited on his note to Grim. The third instruction is:\n\u201cIf the jury find from the evidence, that Grim originally OAvned the brick and was in possession thereof, and there was no change of possession, but that the brick still remained as they Avere, in Grim\u2019s possession, on the third of August, 1869, when levied on, then, and in that case, they were liable to be taken on the writ of attachment, and the jury should find for the defendant.\u201d\nThis instruction was wrong, as, from the nature of the article\u2014a brick kiln\u2014it could not be taken possession of in any other mode than by exercising acts of ownership over it, to the exclusion of others. The jury would understand by the terms of this instruction, that the kiln should be removed from the ground in order to effect a change of possession, which the law does not require. It is proved by the plaintiff, he having testified in the cause, that he took possession and sold brick from the kiln in June and July, before the attachment was issued.\nThe error of this instruction would be cured by that given by the court, if we could infer it was understood by the jury as explaining and qualifying the third. It was not one of a series.\nIt is claimed by appellant that the court erred in admitting proof of fraud in the transaction of sale, fraud not having been set up by the pleadings.\nIt is never required, in such cases, that fraud should be pleaded. The vendee of property is bound to show the sale was fair and bona fide, if impeached. Circumstances going to establish fraud in such cases, are always admissible in evidence.\nWe do not think justice has been done by the finding of th\u00e9 jury, and think the cause should be tried by another jury, and for that purpose, and for the reasons given, reverse the judgment and remand the cause.\nJudgment reversed.",
        "type": "majority",
        "author": "Mr. Justice Breese"
      }
    ],
    "attorneys": [
      "Mr. A. L. Humphrey and Messrs. Hannaman, Kretzinger & Hannaman, for the appellant.",
      "Messrs. Craig & Harvey, for the appellee."
    ],
    "corrections": "",
    "head_matter": "Robert M. Piner v. Eli Cover.\n1. Sale of chattels\u2014what constitutes. Where a person purchased a brick kiln, the agreement being that the purchaser should take the brick and dispose of them, and apply the proceeds on debts of the vendor, it was held, in an action of replevin by the vendee against one who claimed to hold under an attachment against the vendor, it would tend to mislead the jury to instruct them that such a transaction did not amount to a sale. Such an agreement might amount to a sale, if the transaction was fair.\n3. Same\u2014delivery of possession. On the sale of a brick kiln, it is not essential to the transfer of possession to the vendee, that he should remove the kiln from the ground; it is enough, if he exercise acts of ownership over it, to the exclusion of others\u2014as in taking possession of the kiln on the ground where it stood, and selling brick therefrom.\n3. Instructions should be based upon the evidence.\n4. Instructions\u2014obviating the error in one instruction, by another. An error in one instruction given to a jury may be cured by another, if it can be inferred the latter was understood by the jury as explaining and qualifying the former.\n5. Fraud\u2014in what manner availed of. In an action of replevin by a vendee of chattels, against one who claims the property under an attachment against the vendor, the defendant may make proof (if fraud in the transaction of sale without that defense having been set up by the pleadings. Circumstances going to establish fraud in such cases are always admissible in evidence.\nAppeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.\nThis was an action of replevin, brought in the court below, by Finer against Cover. A trial resulted in a verdict and judgment in favor of the defendant. The plaintiff appealed.\nMr. A. L. Humphrey and Messrs. Hannaman, Kretzinger & Hannaman, for the appellant.\nMessrs. Craig & Harvey, for the appellee."
  },
  "file_name": "0391-01",
  "first_page_order": 391,
  "last_page_order": 393
}