Phenix v. Gilfillan

47 Ill. App. 220, 1892 Ill. App. LEXIS 68

• Court: Appellate Court of Illinois
• Decided: May 25, 1893
• Status: Published

Opinion

Mr. Justice Harker.

This was an action of replevin commenced by appellant to recover the possession of a piano.

The defense interposed was that appellant, about two years before the commencement of the suit, gave the piano to appellee, Mary 0. Gilfillan.

It appears from the evidence that the piano was purchased by appellant and placed in his house in 1884. His family at that time consisted of himself, his wife and Mary Howlan, now Mary Gilfillan. Mary had been in the family since she was eight years old. She testified that appellant had frequently promised to give her the piano and that after she married and moved from appellant’s home with her husband he did give it to her and told her to take it from his home, then rented to and occupied by a tenant, which she did. Appellant denied giving the piano to Mrs. Gilfillan and denied that he authorized her to take it from his home.

The jury found the title to the piano to be in Mrs. Gilfillan. Mrs. Gilfillan was corroborated by her husband and a witness named Irvin Lattin, who testified to conversations had with appellant after the removal of the piano from his house to the effect that he had given the piano to her.

Appellant contends that whatever view may be taken of the controverted statement that he gave the piano to Mrs. Gilfillan the gift was not valid because there was no delivery of the property to her.

While it is true that a verbal gift, unaccompanied by a delivery of possession, is not sufficient to change the title to personal property, we are of the opinion that the direction given by appellant to Mrs. Gilfillan to take the piano from his house, followed by a taking of it, amounted to a sufficient delivery.

We see no error in the trial court in giving, refusing or modifying instructions.

We approve the finding of the jury and the judgment of the court below.

Judgment affirmed.