Parish v. Morey ( 1879 )

Graves, J.

Under pretense of bargaining with the -plaintiff to buy his horse and by means of fraud and trick, one Butler got into his hands a formal bill of sale together with the horse, and immediately sold the latter to the defendant who purchased in good faith. The defendant refused to give up the property, and the plaintiff brought replevin.

In hearing the case the judge sat without a jury, and after finding the facts, gave judgment thereon for the defendant. The determination comes before us on a case. According to the state of facts it is too plain to excuse difference of opinion that no contract of sale was consummated between Butler and the plaintiff, and that the latter never delivered the bill of sale or gave possession of the horse, or lost control of him except through' the former’s act of force committed against the plaintiff’s remonstrance. The facts are so conclusive that Butler was a mere wrong-doer, and acquired no shadow of right, that defendant’s counsel confines his defense of the judg-' ment to the claim that the finding is not sufficient to| warrant a judgment for the plaintiff, and this ground is taken on the assumption that Butler received the horse from Kennedy who had lawful possession, and that noth-! ing appears to repel the presumption that Kennedy acted by authority in giving possession.

It is a sufficient answer to say that the effect of the finding is that Parish never gave up control or authorized Kennedy or any other person to meddle with thej horse, and that Butler “took” him, and did not receive him from Kennedy. See Trudo v. Anderson, 10 Mich., 357; Pease v. Smith, 61 N. Y., 477; Bearce v. Bowker, 115 Mass., 129; Cundy v. Lindsay (H. L.) 38 L. T. R. (N. S.), 573.

The judgment must be reversed, and one entered here for the plaintiff with costs of both courts.

The other Justices concurred.