Cranz v. Kroger

22 Ill. 74

• Court: Illinois Supreme Court
• Decided: April 15, 1859
• Status: Published

Opinion

Breese, J.

It is a well-settled principle that a verbal gift without delivery can be resumed by the giver. Not so, however, where the gift is evidenced by writing. 2 Kent’s Com. 438; Irons v. Smallpiece, 4 Eng. C. L. R. 635 ; Caines and Wife v. Marley, 2 Tenn. (Merger’s) R. Here there was a bill of sale executed to the plaintiff’s wife, of the property in question. But assuming the gift of the property to be in parol only, there is proof to show a delivery. The defendant himself marked the boxes containing the articles declared for, at Cleveland, Ohio, to M. E. Kroger, the plaintiff’s wife, and forwarded them to her at Rock Island, in this State, where they were placed in a warehouse and taken therefrom by the plaintiff, he giving his receipt for them. It is also proved that defendant had taken a lease of the articles from the plaintiff’s wife. The parol gift then, if it was one, was consummated by delivery and could not be recalled; and the acceptance, by the defendant, of a lease of the property from the plaintiff, estopped him from denying her right to it. 5 Bac. Abr., title “ Leases.”

It cannot be denied, that a parent may give an article of personal property to his infant child, and resume the gift, without the consent of the child, and sell it. This power arises from the position of the parties, and from the principle of control a parent can exercise over his infant child, and all that belongs to it. This disposes of the claim of Amelia Alexander, as arising out of a supposed gift to her of the piano prior to the sale and delivery to the plaintiff, and when she was but ten years of age.

We do not perceive any essential error in any of the instructions, or modifications of those asked by the defendant, as made by the court.

There are certainly more ways than one of proving the detention of property, under that issue in replevin. A demand and refusal is one way, but any circumstances which go to satisfy the jury that a demand would have been unavailing, or a refusal of a party to listen to a demand, would be sufficient. Johnson v. Howe, 2 Gilm. R. 344.

The weight of evidence is entirely with the plaintiff in this case. On an important occasion, before the Probate Court, the defendant disclaimed all title to this property—insisted it was the plaintiff’s, and all the interest that he had in it was a lease, and there is no evidence that since that investigation he has been clothed with the title. The judgment is affirmed.

Judgment affirmed.