This section contains the nature of the case and procedural background.

O'Connor was engaged in the business of keeping wagons for hire. O'Connor had in his employ a man named George Tracy who had formerly been in the business of piano moving. O'Connor had a wagon built and printed on the side the words, 'George Tracy Piano Mover.' In 1891, Tracy attempted to sell the wagon at a bazaar but was no successful. Tracy then encountered Clark (D) who agreed to buy the horse and wagon for $125. D tried to verify who Tracy was and went to a police station and a saloon where the identity was verified. During trial, the court instructed the jury that the wagon belonged to P and that Tracy took it without permission and sold it and that no title was conveyed to D. P got the verdict and D appealed. D wanted a jury instruction that if O'Connor allowed Tracy to exercise such control and possession as to imply a right to sell.....or that if O'Connor allowed Tracy to put his name on the wagon and made no effort to efface it and thereby allowed D to be misled....

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