
    No. 139
    ANDREWS v. TROSTLE et
    No. 19437.
    Supreme Court
    On motion to certify.
    Dock. Nov. 23, 1925;
    3 Abs. 738.
    . 1198. TROVER — Where a chattel has been delivered and permitted by ' vendor' to remain in , barn of vendor for . period. of some eight months,' and said ^property is: attached by another creditor of vendor, can.the vendor maintain an action,in trqyer?
    Note — Motion to certify in this case allowed. 4 Abs. 26.
    Attorneys — A. A. Slaybaugh, .Leipsie, for Andrews; J. P. Leasure, Ottawa, and Wayne ' M. Trostle, Cleveland, for Trostle et.
   On June 25, 1921, one Gassert gave a written order to Milton Trostle et al. for a certain furnace whiOh was delivered; and part oi same was put in Gassert’s residence' and, part in a neighboring barn.i Gassert' never prepared a place for said furnace to be installed and it remained where placed on Sept. 11, 1921 until in 1922 when attached by Earl Andrews in a suit against Gassert for a merchandise account. Judgment was rendered against Gassert and the furnace sold at a public sale, Andrews receiving his account in full.

. Trostle, commenced an action against Andrews in the Putnam Common Pleas for conversion of the furnace and asked $225 damages. The case was - tried and resulted in a verdict for Trostle, the Court of Appeals reversing the judgment. Upon retrial the verdict was again for Trostle and the judgment was affirmed, by the court of Appeals but by a divided court.

The case is in the Supreme Court on a motion to certify and it is claimed by Andrews that the rights of the parties are wholly dependent on whether or not delivery was made by Trostle to Gassert of the furnace in question prior to the date of attachment. It is further claimde by Andrews that the undisputed facts and actions of Trostle show as a matter of law that delivery and sale were made on Sept. 11, 1921; and that thereafter Gassert was the owner of said furnace.

It is contended that Trostle had nothing further to do with the furnace to put it in a deliverable state on September 11th; and that by terms of the contract with Gassert, Trostle did not reserve any right of possession or other right in said furnace; and Gassert was the unconditional owner of the furnace on September 11th when delivered and on June 9, ,1922, when attached.

It is claimed that title to or right of property in a chattel will not support an action in trover; but that it must be united with actual possession or a right to immediate possession. An equitable title or right will not suffice for the maintenance of trover.

It is further claimed that Trostle was guilty of gross negligence and laches in allowing the furnace to remain in Gassert’s possession for more than eight months, until after it had been sold; and as against Andrews, should be es-topped from claiming it.  