delivered the opinion of the Court:
This was an action of replevin, brought by appellee in the Tazewell circuit court against appellant, to recover 115 head of cattle. The venue was afterwards changed to Fulton county, and thence to Schuyler county. A trial was had, and the jury found in favor of appellee. A motion for a new trial was entered, but overruled by the court, and judgment rendered on the verdict, and the case is brought to this court on appeal.
It is claimed that the evidence does not support the verdict; that the court admitted improper evidence on the part of appellee; that the court refused proper instructions asked by appellant, and gave improper instructions asked by appellee.
It appears that appellee, and Bisinger, who was engaged in carrying on a distillery, in the spring of 1868, entered into a partnership agreement in writing for the purchase, feeding and sale of stock cattle and hogs. By its terms appellee was to purchase the stock, giving his time, to furnish one-half of the money required for the purchase and other expenses attending the feeding, except slops from the distillery. Bisinger, on his part, was to furnish the slops free of charge, and one-half of the money to cover purchase, expenses, etc., each party to share equally in profits and losses of the business. About 300 head of hogs were purchased, fed and sold under this agreement, and, as appellee claims, were paid for by him with his money. Appellee claims that Bisinger was unable to furnish money to carry out the arrangement, when the partnership was abandoned and a new verbal agreement was entered into by the parties, by which it was understood that appellee was to go on and stock the distillery yards and furnish all the money required for the purpose and other expenses, except the slops, which were to be furnished by Bisinger, and appellee was to have the entire control and sale thereof; to receive the proceeds of the sales, and retain therefrom all moneys advanced and ten per cent interest on one-half 'of the - amount, after which he was to divide and pay to Risinger one-half of the net profits, and the losses were to be equally divided.
Under this arrangement, some hogs and a few cattle were purchased during the spring and summer of 1868, which were fatted and sold by appellee, and the proceeds accounted for under the agreement. These facts are testified to by appellee and several other witnesses, but Risinger testifies that the first arrangement was not abrogated, but continued in full force. In September or October, 1868, appellee purchased the cattle in controversy. They were brought to, and put in, the feeding pens, and fed there until the following spring—appellee, as he claims, furnishing all of the money to buy the cattle and pay expenses ; Risinger claiming the money was raised by their note from the bank ; but it at least appears appellee paid the bank. In March, 1869, the cattle being ready for market, Neal proposed to purchase the cattle, when appellee offered to take $7.75 per 100 lbs., when Risinger suggested they had better not sell for a few days, and it was agreed they should meet Neal and Black at Peoria in a few days for the purpose of selling to them. This arrangement seems to have been assented to by all parties, and it was arranged that appellee should come to Pekin again on the next Monday.
Within a day or two after this interview, and before the time fixed for meeting Neal and Black, Risinger, without the knowledge of appellee, sold the cattle to appellant at $7.75 per 10Ó lbs. To evidence this sale, a written agreement was drawn up and signed by the parties, Risinger signing his and appellee’s names. When executed, it was placed in the hands of Smith, a son-in-law of Risinger. Appellee was notified on Monday, the day he was to have come to Pekin, of the sale; he came to Pekin in the afternoon and heard the agreement-read.
Appellee swears that, as the agreement was read, he understood it gave him the entire control of the money, and that it was to be paid to him when the cattle were weighed. He states that he assented to the sale as he understood it, and said that, as it was made, if carried out in good faith and the money paid to him when the cattle were weighed, it would be right. In this, he is contradicted by opposing testimony, as Smith swears he assented to the sale unconditionally. The time for weighing the cattle not being fixed by the contract, appellee was to have notice. About the 25th of April, one of appellee’s sons saw Risinger, and he swears that the latter said the cattle would not be shipped until the 1st of June, and desired the latter to purchase hay to feed them until that time. But he swears he learned, the same day, that it was intended to ship them on the 27th, and he so informed his father.
The weighing of the cattle commenced about seven o’clock on the morning of the 27th of April, without notice to appellee, who lived sixteen miles from Pekin, but he reached there soon after the weighing commenced. Roney says, when he arrived at the scales, Risinger was at work weighing the cattle, and when asked if appellee would be there, he was informed by Risinger that he would not, but they wanted weights of the cattle to telegraph to Chicago, and were unable to get word to appellee in time. The cattle were weighed, and appellee, while it was progressing, complained that the cattle were not weighing enough. And it appears that, when again weighed in Chicago, there was an increase of 3060 pounds in the weight on the lot.
After the weighing had been completed, appellant fixed two o’clock in the afternoon to settle and pay for the cattle. Appellee swears he was at appellant’s office, the place specified, five minutes before the time, and on reaching the office was informed that appellant and Risinger had been there and settled, and that the former had given the latter his check on the bank for the amount. Thereupon appellee brought this suit. This was done about four or five o’clock in the afternoon. Whereupon, one McGrew replevied the cattle from appellee the same evening. The cattle were shipped that night to Chicago ; appellant and Smith went to Chicago, and appellee also went. When the cattle arrived at their destination, appellee again replevied them from appellant, into whose possession they seem to have been delivered; and Smith, the son-in-law of Bisinger, replevied them in the name of McGrew, from appellee. It was stipulated that all of these suits should abide and be governed by the determination of this.
• Appellant insists that the first partnership continued, and he had the right to purchase the cattle of Bisinger, and to be protected in his purchase. On the other hand, appellee claims that the purchase was only colorable, and made for the purpose of fraudulently placing the funds in the hands of Bisinger ; that appellant knew the relations that existed between appellee and Bisinger, and even if he did not, he acquired no title to the cattle.
An attentive consideration of the evidence satisfies us that the jury were fully warranted in the conclusion that the first partnership arrangement had been abandoned and a new and different agreement entered into by the parties. It is true, there is conflict in the evidence, but we incline to believe that the weight is on the side of the verdict. Where such is the case, we will not disturb the finding. The jury and the court below have superior means of ascertaining the truth in cases of conflict, as they see and hear the witnesses, and from their appearance, intelligence, and manner on the stand, can better judge of the weight of evidence than we can, who only see the evidence on paper. The new arrangement, then, having superseded the first partnership agreement, it follows that appellee had the right to control the sale of the cattle and to receive the money.
Were the jury warranted in believing, from the evidence before them, that the sale to appellant was fraudulent, and contrived to enable Bisinger to possess himself of the money ? We think they were. It is true, that there is much conflict in the testimony, and there may be some doubt, but when all of the evidence is considered, we think it preponderates in favor of the verdict. When it is remembered that parties, entering into fraudulent schemes, endeavor to cover up the true purpose, we must not expect to find clear and undisputed evidence of its existence. The parties seldom entrust their plans to others, and usually, as far as possible, adopt legal forms and the usual course of business to conceal their designs. From these considerations, it is usually a matter of much difficulty to detect and expose fraud in almost every species of transaction.
In this case, without considering all of the evidence which warranted the jury in finding there was fraud, some of the most prominent facts may be enumerated. In the first place, whilst appellant is a large grain dealer, it seems this was his first purchase of cattle for the stock markets. It was a transaction of considerable magnitude even to a large trader. Again, the trade seems to have been made without delay, and within a very short space of time after Heal and Black had proposed to purchase. Again, Bisinger sells to him at the same price appellee had offered them to Heal and Black, and to which he objected but a short time previously, and in violation of the agreement to see Heal and Black, and before the time they were to see the latter at Peoria for the purpose of selling to them, and the attempt to have them weighed and shipped without notice to appellee, as had been agreed; the strange difference in the weights at Pekin and Chicago, the weights being larger at the latter than at the former place, when those having experience say—and it accords with natural laws—that a large shrinkage takes place by shipping cattle on the cars. Again, the meeting of appellant and Bisinger after the cattle were weighed, and the settlement and payment to Bisinger before the time fixed to meet at appellant’s office—all point strongly to a purpose to prevent appellee from controlling the cattle and receiving the pay. And from the evidence in the case, it makes a strong impression on the mind that it was so planned as to prevent the various steps they took from coming to the knowledge of appellee. And the fact that Eisinger, on Saturday before the stock was weighed, told Webster Crosby that the cattle would not be shipped before June, when he and appellant had arranged to weigh and ship on the next Monday, and to weigh before appellee could reach town, even had they, as Eisinger pretends, have sent him word on the morning the cattle were weighed, is strong evidence of the secret design imputed to them. This is almost conclusive evidence that the design was concealment and for fraudulent purposes. Other facts might be referred to indicating fraud, but these facts, of themselves, strongly impress the mind that there was in this a secret fraudulent design on the part of Eisinger to possess himself of the price of the cattle, and that appellant participated in the design.
It is true, they deny the fraud and attempt to explain their conduct, but they fail to overcome the strong presumption against them arising from the evidence. The jury were fully warranted in finding as they did. In fact, we can not well see how they could have done otherwise. As we have said, the evidence is conflicting, but the circumstances which surround the case tend strongly to support appellee’s witnesses. We are not, therefore, inclined to disturb the verdict of the jury.
It is urged, that the court admitted improper evidence on the part of appellee ; that the statements and declarations of Eisinger in reference to the arrangement between him and appellee, made when appellant was not present, should not have gone to the jury. They were introduced to prove title in appellee prior to the sale, and w'ere clearly admissible for that purpose; and they were binding on appellant as a privy by purchase from Eisinger. This is one of the usual and well recognized modes of proving title as against the vendee of chattels. In this there was no error.
A careful examination of the instructions fails to disclose any error in either giving or refusing them. As to the instruction in the record not marked as given or refused, we will not presume that it was refused ; but, as it is not marked, we will rather infer that it was not presented to the court and accidentally got into the files. It devolves upon appellant to show error, and even if it would have been a material error to refuse it had it been asked, still it fails to appear that it was refused.
On this entire record we fail to see any error, and the judgment of the court below must be affirmed.
Judgment affirmed.