#### Levi M. Haverstick v. Robert Fergus et al.

Replevin—does not lie for breach of contract to sell. The fact that a vendor has not performed his contract to sell a boiler, where the purchaser has never had possession, nor has the right to possession, will not authorize a suit in replevin, but the remedy for a failure to perform the contract, is an action for its breach.

Appeal from the Superior Court of Cook county; the Hon. William A. Porter, Judge, presiding.

This was an action of replevin, by Levi M. Haverstiok against Robert Fergus, George H. Fergus, John B. Fergus and W. Scott Fergus, for the recovery of a steam boiler which the plaintiff claimed to have bought. The court found for the defendants, and rendered judgment accordingly, from which the plaintiff appealed.

Mr. R. W. Smith, for the appellant.

Messrs. Hervey, Anthony & Galt, for the appellees.

*106Mr. Chief Justice Breese

delivered the opinion of the Court:

There is no ground for maintaining the action of replevin on the facts appearing in this record.

The most that appellant could claim is, that appellees had not performed their contract in respect to the sale of the boiler. The article never was in appellant’s possession, nor had he the right of possession. The remedy for a failure to perform the contract was by an action for the breach—replevin will not lie. Low v. Freeman, 12 Ill. 467.

But admitting the action will lie, the weight of evidence is clearly in favor of appellees on all the points made, and the court, sitting as a jury, decided correctly in finding for appellees, and we affirm the judgment.

Judgment affirmed.