delivered the opinion of the Court:
It is first insisted, that the court erred in trying the case on appeal, without service on defendant McLane. The judgment before the justice of the peace was against him as well as the Callaghans, but he did not join in the appeal, nor was there any process against him from the circuit court, nor did he enter his appearance. But the cause was tried in the circuit court, and a judgment rendered against appellants. The action being trespass, the plaintiff could sue either one or all of the tort feasors. For wrongs in the nature of trespass, etc., the wrong doers are jointly and severally liable, and the plaintiff is not required to sue all engaged in the tort.
*568The practice has always permitted the plaintiff in trespass, after suit brought, at any time before judgment, to dismiss as to either or any of the defendants and proceed against the others. Plaintiff had, in this case, the undoubted right to have dismissed as to McLane, and had he done so, appellants’ counsel would not have questioned its regularity. The failure to have McLane brought into court on the appeal, and trying the cause without his being made a party to the appeal, operated and had the same effect as if the suit had been dismissed as to him. It accomplished the same thing in another manner. Flinn v. Barlow, 16 Ill. 39, and Wilderman v. Sandusky, 15 id. 59.
Had appellee desired to recover a judgment against McLane, then a compliance with section 70 of the Justice of the Peace act would have been indispensable. Or if the cause of action had been such that a recovery could only be had against all or none of the defendants, then a summons, under that section, would, to render the proceeding regular, have to be issued as required by that section. But this was not on a contract, but for a tort. The law never requires the performance of a useless act, and it would have been such to have had McLane served and then have dismissed as to him. What was done produced precisely that result.
It is next urged, that the fourth of appellee’s instructions was wrong in assuming that appellants were trespassers. Counsel surely mistake the import of the language. It, by no known rule of construction, can be held to make any such an assertion. It only announces, that as to a trespasser, wrongdoer or tort feasor, possession of property is evidence of ownership. This is an elementary rule of law that has never been questioned, and the instruction announces it as such, applicable to this as in all other cases. The instruction then informs the jury, that if appellee held, possession of the property, and the defendants forcibly took it from him, the jury should find for him, unless they satisfied the jury that the property belonged to the defendant in attachment. We *569perceive no objection to this instruction. The objection urged seems to be purely imaginary, and wholly unfounded.
It is also insisted, that the court erred in refusing to give for appellants this instruction:
“ If the jury believe, from the evidence, that defendants, or either of them, on the afternoon of March 14th, 1876, and shortly before levying the attachment, went to plaintiff's store and were there told, in substance, by plaintiff's son, or other person in charge of the store, or managing plaintiff's business, that plaintiff had not yet bought the books of Fisk, the jury are at liberty to take such fact into consideration, as tending to show that the purchase of the books had not yet been completed by plaintiff."
This instruction is faulty because it does not leave it to the jury to find from the evidence that plaintiff's son, or other person in charge of the store, was his agent. If the son or other person in charge was only so temporarily, or was not his general agent, or was not specially authorized to make for him such a statement, then he would not be bound by it. It was only hearsay, and the son or other person should have been called to prove the fact. This instruction assumes that the person was authorized to make the statement, and that should have been, if the evidence authorized it, left to the jury. Again, this instruction is vicious in selecting and calling the attention of the jury to a single fact, and it would have been unfair to appellee to have given it. The practice would be pernicious to permit each party to ask an instruction on every item of evidence in the case, and if this Avere sanctioned, to be consistent we Avould be compelled to sanction such a practice. All Icuoav, and the jury fully understand, that all evidence admitted on a trial is for their consideration, and to permit a single item or a few items to be selected, and. they specially directed to consider it, or them, gives too much prominence to such evidence to be fair to the other party, and avc have so held in numerous cases.
*570It is said, that as no price was agreed upon for the books before they were attached, the sale was not complete. The proposition is not true. An agreement to sell, with a delivery, may complete the sale, and vest the title, although the definite price may not be fixed at the time of sale. Suppose a person sells and delivers property, and it is agreed the price shall be fixed by another, or by reference to the reports of sales at a particular time and in a specified market, or the inspection of the article, can any business man even doubt the sale is complete. Whether the sale is executed, and the title passes, to the buyer, depends on the intention of the parties, and that may be shown by circumstances as well as declarations.
Here, there was an agreement to purchase, a part of the price paid, the possession of the books delivered, and the amount to be paid fixed, if the books proved to be as represented. See O’Keefe v. Kellogg, 15 Ill. 347, Kohl v. Lindley, 39 id. 195, and Barrow v. Window, 71 id. 214, and other eases might be cited recognizing the rule.
We find nothing in the evidence from which we can infer that appellee loaned Fisk the money he advanced, and took, the books as a pledge. But if the evidence did show that was the case, still appellee would have the right to hold them until his money was repaid.
It is urged, that the parties, when they went to the justice’s office to bring suit, intended to sue in Fisk’s name for double the value of the property, on the ground it was exempt; that Fisk had executed to appellee an assignment of any judgment which might be recovered, and this should be conclusive that the property belonged to Fisk, and not to appellee. Hill and appellee both positively deny that any such assignment was ever made. They are positive in their statements. Fisk swears such an arrangement was entered into and such a paper executed, and states Avhat he says were its contents. Railton says he Avent to appellee, at the request of Fisk, and took and handed him a memorandum of such an assignment, and requested a copy of it, and appellee said the paper Was in the hands of *571Hill and he would see him in reference to the paper. Appellee says that the paper did not describe such a paper, and that he did not know what paper was referred to. The evidence on this question is irreconcilable, and it was for the jury to determine. Their means of determining the truth was better than ours, and we can see no reason to differ from them in the conclusion they have reached.
All the evidence considered, we think it sustains the verdict, and perceiving no error in the record, the judgment of the court below is affirmed.
Judgment affirmed.