Musick v. Samuel P. Hodgen.

• Decision Date: 31 January 1868
• Citation: 1868 WL 4948,47 Ill. 125
• Court: Illinois Supreme Court
• Parties: DUSTIN & MUSICKv.SAMUEL P. HODGEN.

47 Ill. 125

1868 WL 4948 (Ill.)

DUSTIN & MUSICK

v.SAMUEL P. HODGEN.

Supreme Court of Illinois.

January Term, 1868.

APPEAL from the Circuit Court of McLean county; the Hon. JOHN M. SCOTT, Judge, presiding.

The opinion states the case.

Mr. R. E. WILLIAMS and Mr. WM. MCGALLIARD, for the appellants.

Messrs. GREEN & MOORE, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit, brought in the Logan Circuit Court, and by change of venue, taken to the McLean Circuit Court, by Samuel P. Hodgen against William M. Dustin and George Musick, and a verdict and judgment for the plaintiff, a motion for a new trial having been overruled.

The defendants bring the case here by appeal, and assign as causes for reversing the judgment, that the verdict was against the law and the evidence; that the court gave improper instructions for the plaintiff; and last, that proper and relevant testimony, offered by the defendants, was ruled out.

It appears the parties were residents of Lincoln, in Logan county, the plaintiff doing business there as a merchant, in the spring of 1861, and prior thereto, and purchasing corn, which he sent to his commission merchants at Chicago, Mudd & Updyke, for sale. The defendants were bankers, at Lincoln, and had been, for some years previous to this controversy, doing business in the name of Dustin & Musick.

The plaintiff alleges, that the money arising from the sale of the corn, was, by the special request of the defendants, to be deposited by Mudd & Updyke with the banking house of Hoffman & Gelpcke, to the defendants' credit, with the understanding that plaintiff was to draw on the defendants, at Lincoln, for the money, and that the deposits made, at different times, amounted to thirty-five hundred dollars.

This is the plaintiff's statement of the case.

The defendants deny any such request, but admit they did, on one occasion, agree that plaintiff might so deposit one thousand dollars, provided it was done within a given time. That it was not deposited within the time, and that so soon as they were notified that this sum was so deposited, they refused to accept it, or draw for it, and that the plaintiff, notwithstanding this, continued afterwards, and without their knowledge or consent, to deposit money with that house, to the credit of defendants, all which was unauthorized by them, and was repudiated by them so soon as the fact came to their knowledge, and this is the issue between the parties.

The proof shows there was an agreement in April, 1861, as to this depositing, and that on the eighth of May, 1861, there was deposited with Hoffman & Gelpcke, by Mudd & Updyke, for plaintiff, one thousand dollars; on the thirteenth of the same month, fifteen hundred dollars, and on the sixteenth of May, one thousand dollars, all to the credit of the defendants, of which the plaintiff was notified. This is the testimony of J. J. Mudd, of the firm of Mudd & Updyke, and he also states when he deposited the fifteen hundred dollars, he was instructed by plaintiff to deposit but one thousand dollars, but having the money on hand belonging to the plaintiff, he made the deposit fifteen hundred dollars, and he also says, the last thousand dollars they were instructed to deposit to the credit of Brainerd & Dustin, but he knowing there was no such firm then at Lincoln, Brainerd having sold out to Dustin & Musick, he took the responsibility of making the deposit to their credit.

There is no controversy about amounts, or time of actual deposit.

The questions are, at what time was it agreed that any deposit might be made, and what amount; and was the deposit of the agreed amount made in a reasonable time after the agreement. On this, the whole controversy turns.

The plaintiff endeavored, by the deposition of Thomas H. Denny, to establish the agreement, and for that purpose required him to state a conversation he had with Dustin, in the latter part of July or first of August, 1861. From this it appears, Dustin said there was an engagement with plaintiff to deposit “corn money,” and that it was made on the first day of May, 1861, in Chicago; that there was nothing said about the time when the deposit was to be made, but that plaintiff told him the corn was then sold, and he, Dustin, expected the deposit would be made in two or three days, but no part of it was made until the eighth of that month; that had it been deposited at the time he expected, they could have used it without loss, but being so long delayed, they could not so use it, and he did not think himself bound, on the eighth of May, for an arrangement he supposed would be complied with by the third or fourth, and that when the deposit was made, it was not worth what purported to be deposited, owing to the depreciation that had taken place in the currency then in use and so deposited. He said thirty-five hundred dollars had been deposited, an amount greater than was agreed upon or he expected.

J. J. Mudd testified, there was but one direction by plaintiff to his firm, and that was previous to the eighth of May, to deposit money as stated, and that direction was verbal, and was to deposit two thousand dollars when collected by him. This direction was given by the plaintiff when he was in Chicago.

In answer to a bill of discovery, filed by the plaintiff, against the defendants, they exhibited certain letters to them from Hoffman & Gelpcke, the first dated May 8, 1861, to the effect that they had credited their account with one thousand dollars, deposited by Mudd & Updyke for account of S. P. Hodgen. The other was dated May 15, 1861, saying, “We credit your account $1,500, deposited by Mudd & Updyke.” The last letter bore date May 16, and says: “Your favor of the 15th inst., has been received, with inclosure as stated, for which we credit your account $400; also, deposit of Mudd & Updyke, $1,000, and two drafts, Charles Randolph, $400.” These letters came duly to hand. The account current of Hoffman & Gelpcke with Dustin & Musick, was also an exhibit, in which it appears they were credited with these several deposits, and which account current they received after the 1st day of June, 1861. On the part of the defendants, the same Mr. Denny was called and sworn as a witness, and he testified that about the time he had the conversation with Dustin, detailed above, he had one also with the plaintiff, who told him that he had arranged with Dustin, in Chicago, about the 1st of May, to deposit some money in Chicago to the credit of defendants. He had told Dustin he wanted to deposit enough to pay some debts he was owing, and wanted to pay them through the bank; he said he made this arrangement with Dustin, because, owing to the uncertainty in the value of money, he wished to avoid having it pass through his hands. The amount he wished to deposit, was enough to pay Edwards and Latham, to each of whom he was owing about one thousand dollars. He admitted that there was more money deposited than he himself expected, or than Dustin expected or agreed; not certain which word was used, and that the money was not deposited as soon as he or Dustin expected. He said that defendants were liable for two thousand dollars of the first deposit, and did not know, but thought he could hold them liable for the balance, but did not think he should; and, he further said, the defendants denied their liability for any of it. In that conversation, plaintiff said nothing about agreeing with Dustin that the money should be brought to Lincoln by express, at plaintiff's expense, but could not recollect what he said about that.

On the 11th day of May, 1861, J. M. Edwards, a creditor by note of the plaintiff, went to plaintiff's store to get payment, and after allowing plaintiff some credits, it was agreed between them that Edwards should have a certificate of deposit from the defendants for the balance of the note, which was about twelve hundred dollars. The plaintiff wanted his clerk to go with witness to defendants' bank, to get a certificate of deposit for this balance. The clerk told plaintiff it was of no use for him to go, for they would not give him a certificate, or that he could not get one, as they had refused the day before, to take money on deposit. Plaintiff himself then went with witness to defendants' bank, and asked Musick for a certificate of deposit for witness, for the balance, over twelve hundred dollars. The plaintiff asked Musick if he would give witness a certificate of deposit for one thousand dollars he had deposited to their credit at Chicago, with Hoffman & Gelpcke. Musick replied that he could not, and said to plaintiff, he ought not to ask him to do such a thing as to take this thousand dollars in Chicago, and give witness a certificate for it there in Lincoln, in such precarious times. Plaintiff then said that under the circumstances, he did not know that he could blame Musick for not taking the money in Chicago and giving the desired certificate. Musick, at the same time said, they had more of the same currency on hand than they could use without loss, and also said, they were bound to lose money on the currency anyhow, on what they then had on hand, and that Dustin had telegraphed him from Chicago, not to take any more currency on deposit. Musick inquired of plaintiff who had been his banker theretofore, until this crisis came on until people got afraid of the money, to which plaintiff replied that he kept his money himself, and had been his own banker. Musick said he had refused to take money from his old customers, and that plaintiff had only deposited recently with them, since money was getting worthless. At this time, the plaintiff had a certificate of defendants, for some money he had previously deposited, and prevailed on Musick to take up the old certificate and give witness one for the balance, over one thousand dollars, that was coming to him on plaintiff's note, and Musick gave pl...