dissenting.

The appellees show that they sold the cattle to Bussell, through Fleischman.

The telegram by Bussell to Fleischman to buy a load of cattle, being accompanied by no funds, was an authority to buy in accordance with the usual course of business, drawing for the price and commission on Bussell, with bill of lading attached. Hunter v. Gordon, 33 Ill. App. 464.

The delivery order given by the appellee to Fleischman upon the appellant, was a symbolical delivery of the property, having the same effect as an actual delivery of the cattle. Burton v. Curyea, 40 Ill. 320; Webster v. Granger, 78 Ill. 230.

Conceding that the appellant made a wrong delivery and is therefore liable in trover to the owner of the cattle, yet it is not liable to anybody not owner. The appellee must, therefore, to claim as owner, get rid of the sale to Bussell.

That Fleischman was not a general, but special, agent, may be admitted, and also that, as consequence, a purchase by him in excess of his authority, would not bind Bussell, and therefore would not vest the property in him. Hot vesting in him it would remain in the appeEee. But how is it to be shown that the purchase was in excess of Fleischman’s authority % There was his authority, and in appearance he was executing it. But if he has already bought one load of cattle that authority was exhausted, and being but a special agent, whoever dealt with him took the risk. Schilling v. Rosenheim, 30 Ill. App. 81.

But the fact, if it be the fact, that he had already bought one load of cattle, is an affirmative fact to be proved by whomsoever claims any benefit of the fact.

What Fleischman said or did, except in executing his agency, is not evidence for or against either party, and a fortiori any inference Horn his conduct is not to affect either of them.

As the appeEee shows nothing to indicate that at the time it sold to Bussell through Fleischman, the authority of the latter had been exhausted, the sale to BusseE is not avoided.

If, then, BusseE was the owner of the cattle at the time of the wrong delivery, no subsequent acts of Bussell or of the appellee could transfer the right of action which Bus-sell had, to the. appellee. Rescission, or the act to rescind, has nothing to do with the case. The cattle are gone and nobody is following them.

delivered the opinion of the Court.

It is urged that there was not only a sale of the cattle to Bussell, but a delivery also, and that consequently the property in the cattle passed to Bussell, and plaintiffs can not maintain this suit.

The delivery was by an order upon the appellant, the bailee in whose custody the cattle were, to deliver them to Bussell; this order was handed to Fleischman, who was Bus-sell’s agent to buy and ship.

This we think would be a good delivery. Taxworth v. Moore, 9 Pick. 347; Carter v. Willard, 19 Pick. 1; Burton v. Curvea, 40 Ill. 320; Weber v. Granger, 78 Ill. 230.

It appears that Fleischman, upon receiving the telegram from Bussell, bought in Bussell’s name two loads of cattle; one of these, consisting of twenty-three head, he shipped to Bussell and drew a draft upon him for their cost, which draft Bussell paid. By the purchase of one load, Fleischman’s authority to buy was exhausted, and if it appeared -that the load shipped to Bussell was purchased before the buying of the load from appellee, it would be clear that Bus-sell acquired no property in the cattle purchased from appellee.

In the absence of evidence as to which load of cattle was first purchased, and consequently, which load Fleischman had authority to buy, recourse must be had to an examination of the conduct of Fleischman, for the purpose of determining which load it was that he bona fide intended in the discharge of his commission to buy for the use and benefit of Bussell.

In buying one or the other of these loads, Fleischman did not intend to buy for Bussell; was not acting for him but for himself, intending to use the cattle for his own fraudulent purposes.

If the cattle purchased from appellee were purchased with a fraudulent intent by Fleischman to apply them to his use, such purpose, not being the carrying out of any order received from Bussell, would, as between Fleischman and Bus-sell, be a thing by which Bussell would neither be bound nor acquire any property, while appellee might be able, as an innocent party, to hold Bussell to a bargain so made. Appellee, if allowed to recover the purchase price from Bussell, would do so upon the ground that it and Bussell being equally innocent, he having put it in the power of Fleischman to defraud is the one who must suffer, rather than they.

Appellee has not, so far as appears since all the facts became known to it, sought to hold Bussell, but by bringing the present action has acquiesced in his representation of Fleischman’s purchase.

Appellant has not acted upon anything that Bussell did; it is immaterial to it whether it respond to Bussell or appellee for the value of these cattle which it delivered upon a forged order; and its insistence that the property in these cattle passed to Bussell, despite the fraud Of Fleischman and the repudiation of his acts by both Bussell and Fleischman, is an urgence of an alleged technical transfer between other parties, without its having, as an innocent party, delivered the cattle upon the order of the party whose property it alleges the cattle were.

If the order had not been forged, if appellant had from Bussell authority to deliver, its position would be very different.

The question in this case is not, however, in whom was the ownership and right of possession of these cattle when appellant delivered them to Holmes & Pattison, but in whom was the ownership and right of possession at the time this action was brought. Granting that the sale and delivery by appellee was' such as to then vest the property in Bussell, appellee and Bussell could rescind such sale and revest appellee with the ownership of the cattle.

This they did.

Bussell, upon being informed of the purchase by Fleischman, repudiated it as made without authority; and appellee acquiesced in such repudiation by bringing this suit, which is in disaffirmance of any ownership by Bussell.

Appellant delivered the cattle upon a forged order. There was no authority from appellee or Bussell to deliver the cattle to Homes & Pattison. Appellants are therefore liable to appellee or Bussell for the value of the cattle. Ho custom can make valid a delivery upon a forged order. Bussell, distinctly, before the beginning of this suit, repudiated the sale claimed to have been made to him, and appellee accepted and acquiesced in the position.

The contract and sale between appellee and Bussell, if any there was, they by mutual consent abandoned.

Contracts may not only be rescinded by .mutual consent, but a rescission may be inferred from the conduct of parties. Tine v. Rogers, 15 Mo. 315; Wehrli v. Renholdt, 107 Ill. 60; Fletcher v. Cole, 23 Vt. 114; Tomlinson et al. v. Roberts, 25 Conn. 477; Alden v. Thurber, 149 Mass. 271; Parmly v. Buckley, 103 Ill. 115.

While it is true that to maintain the action of trover the plaintiff must hav.e had at the time of conversion a complete property, either general or special, in the property, and actual possession or a right to immediate possession, yet the general rule is. that by the rescission of a contract each party is remitted to his original right. Briggs v. Murther, 12 Phila. 179; King v. Price, 2 Chitty, 18 Conn. Law, 416; 18 Am. Ency. of Law, 92.

The plaintiff, by virtue of the rescission and abandonment by mutual consent of the contract of sale, if any there was, was remitted to this ownership and right of possession as of the time of the conversion, the rights of no third persons having intervened; the ownership and right of possession of the cattle was thus at the beginning of this action in appellee, and to them appellant must respond.

The judgment of the Circuit Court is affirmed.