If Mrs. McGrath, at the time she bargained for the cigars, agreed with the sellers, Silverman and Wurtzburger, to pay them ten dollars cash on delivery of the goods, and to place in their hands the sewing-machine in question as security for the balance of the bill, which was conclusively shown by a valid judgment to have been $22.50, until such balance was paid, and she actually delivered the machine to them in pursuance of that agreement, then it is clear, she could maintain no action against them for taking and carrying away the machine; nor would she be entitled to a return of it, without tendering the amount of such bill or account remaining unpaid.
The bill of exceptions contains all the evidence given on behalf of the respective parties below, and we have carefully examined it. We think it is not only shown, by a clear preponderance of the evidence, that she did agree to so place the machine in the hands of her then contemplated creditors, as *416security, but there is, in point of fact, no testimony really in conflict with that evidence. The defendant, Silverman, states time, place, and details of conversation. He is corroborated by Stromberg, who in like manner specifies circumstances, and gives particulars as to conversations tending to prove such agreement; and when plaintiff was recalled after all this testimony was in, she does not attempt to deny the conversations, any part of them, or any of the circumstances. To us, the conclusion is irresistible that such an agreement was made. The agreement itself would not complete the relation of pledgor and pledgee. “ It is of the essence of the contract, that there should be an actual delivery of the thing to the pledgee; until delivery of the thing, the whole rests in an executory contract, however strong may be the engagement to deliver it, and the pledgee acquires no right of property in the thing. What will amount to a delivery of the thing, is, in many cases, matter of law.” Story on Bailments, 8th Ed. § 297.
It may be conceded that there was a conflict of evidence upon the question of delivery. The plaintiff testified that defendants took it by force, and against her consent, while Silverman testified that she delivered it to them, but requested them to take it out the back, instead of the front way. When plaintiff is recalled she does not deny this. Under such state of case, the court instructed the jury that if the evidence satisfied them that the taking and carrying away was done by defendant and Wurtzburger, wantonly, willfully or maliciously^ then, in addition to the actual damages, they might award vindictive or exemplary damages; but all such damages, including the actual damages, could not exceed two hundred dollars.
We think that branch of the instruction was manifestly erroneous, in view of the circumstances of the case. The plaintiff testified that she did not offer to return the goods purchased when she refused to let the sellers take the machine. Assuming, as we have a right to, that the agreement to give the machine in pledge to secure the balance of $22.50 when the goods were delivered was actually made, and that when they were delivered, plaintiff retained them, but refused, without cause or justification, to deliver the pledge as agreed, and the sellers took it notwithstanding such refusal, is that a proper *417case for vindictive damages? The sellers may have acted upon a bona fide claim of right-. If the instruction had been that they took the machine willfully, and without any bona fide claim of right, it might have been sustainable. But no such hypothesis is contained in it. Scott v. Bryson, 74 Ill. 420.
As before stated, it was a controverted question of fact, whether or not the plaintiff had delivered the machine to the defendant and W urtzburger, under the agreement to pla ce it in their hands as security for the balance on the goods they had sold her, of $22.50. ' If she had so delivered it, then, although the general property in the thing would remain in her as the pledgor, yet the defendant and Wurtzburger would thereby acquire a special property in it, as pledgees, which would prevent a recovery by her against them as for a wrongful taking and carrying it away. Story on Bailments, § 287, and cases in note 4.
By the first branch of the instruction above referred to, the jury were told, that “ if the jury believed from the evidence that the defendant, and one Louis M. Wurtzburger, entered upon the premises of the plaintiff, and wrongfully took and carried away the sewing-machine in question, the same being then the property of the plaintiff, and being lawfully in her possession, then the law is for the plaintiff,” etc. This part of the instruction was clearly erroneous, and was calculated to mislead the jury; because, first, it assumes that the property in the machine was in the plaintiff; that is, the entire property, thus suggesting to them as the opinion of the court, that the defendant had no interest therein; because, secondly, it assumes that at the time the machine was taken, it was in the lawful possession of the plaintiff. If it was in her lawful possession, then, of course, it had not- been delivered by her to defendant and Wurtzburger, under the agreement to place it in their hands as a pledge. So that, in effect, the instruction assumes the vital fact in issue, as to which the evidence was conflicting'. That this was error, has been so often decided as to make any reference to authorities unnecessary. The judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.