majority">Pillsbury, P. J.

Cripps claimed no ownership or right of possession in any turkeys belonging to Barry, neither did he sell nor intend to sell any except his own.

He owned a flock of turkeys and agreed to sell Condee twenty-five of them, no particular ones being designated .at the time, but they were to be separated and cooped by Cripps before delivery. This he did not do; and the appellant, by his servant, supposing it would be satisfactory to Cripps, concluded to select the number purchased from the flock, in the woods and fields.

Had he only shot the turkeys that belonged to Cripps' no question would have been made as to the right of plaintiff to. recover. If Cripps and Barry, by agreement, allowed their fowls to run in a common field or pasture, those belonging to Barry were no more in the possession of Cripps than if they were confined in the separate field of the true owner.

Cripps sold and was to deliver his own turkeys, and the most that can be said of the transaction is, that the stipulation in the contract that Cripps was to select the number sold from the flock and coop them, was waived by Condee, and he was allowed to shoot that number of those belonging to Cripps.

The appellant was not authorized to kill those belonging to Barry, and if he did so, it was a trespass by him for which Barry could maintain his action and recover the value of the fowls killed, but in no sense can it be said that such mistake upon his part as to the identity and ownership of the property was a compliance with the contract upon the part of Cripps.

If fourteen of the turkeys thus killed belonged to Barry then Condee never received the property from Cripps that he purchased, and Cripps not being in possession of them, nor claiming any interest in them, no obligation rested upon Condee to pay Cripps for them as property sold and delivered.

The rule as announced in Linton v. Porter, 81 Ill. 107, that a vendee having received from the vendor the article purchased can not retain the article and refuse to pay the price therefor, does not apply, as that case shows that Linton received from Mrs. Porter the identical article purchased and retained peaceable and undisputed possession of it at time of trial, no paramount title having been asserted to it.

In such case it is clear that a failure of consideration can not be predicated upon tlíe alleged breach of the implied warranty of title.

The facts in this case, however, are very different. If Barry having paramount title to the fourteen turkeys had replevied them, could Condee have maintained an action against Cripps for a breach of the implied warranty of title? Clearly not.

It would have been a sufficient answer that Cripps did not sell or deliver them to Condee as his own,- but that Condee killed them without his consent and no claim to the ownership or ,p )s=ession thereof was ever asserted by him or transferred to Condee.

Under the circumstances of this case we have no doubt that Condee had the right to show that Barry in fact owned the fourteen turkeys and asserted his right thereto, and that he yielded to such paramount title, and satisfied the claim either by a surrender of the, property or by paying for it.

As he was not permitted to show this, we think there is error.

The judgment will be reversed and the cause remanded.

Judgment reversed.

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