Robert Palmer, Respondent, v. Daniel Kelly, Appellant

Robert Palmer, Respondent, v. Daniel Kelly, Appellant. (Argued March 25, 1874; decided April 7, 1874.) This was an action to recover damages for an alleged unlawful taking and conversion of a quantity of household furniture. The furniture in question was delivered by defendant to plaintiff under a contract, by which plaintiff was to purchase and pay therefor in installments as specified, and upon full payment the property was to be his, he was also to keep the property insured for the benefit of defendant ; in case of failure to perform, defendant was authorized to retake the property. Plaintiff did not keep the property insured. There was no evidence of waiver or that defendant knew of the non-insurance. The court charged that plaintiff was bound to keep the property insured, and on failure defendant had the right to take possession, unless the jury found some evidence that he had waived this right. Defendant’s counsel requested the court to charge that, plaintiff having failed to insure, defendant was entitled to take possession. The court refused to charge otherwise than had been charged. Held, error, as the court was not warranted in submitting the question of waiver to the jury. Edward Brown for the respondent. Daniel Kelly for the appellant. [MAJORITY — Johnson, J.,] Johnson, J., reads for reversal and new trial. All concur. Judgment reversed.