Adams v. Sturges

• Decision Date: 30 September 1870
• Citation: 1870 WL 6455,55 Ill. 468
• Parties: JAMES L. ADAMS et al.v.EDWARD STURGES, SENR. et al.
• Court: Illinois Supreme Court

55 Ill. 468

1870 WL 6455 (Ill.)

JAMES L. ADAMS et al.

v.EDWARD STURGES, SENR. et al.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. JOHN A. JAMESON, Chief Justice, presiding.

The opinion states the case.

Messrs. WALKER, DEXTER & SMITH, for the appellants.

Mr. JAMES L. STARK, for the appellees.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

In 1869 appellees filed a bill in chancery, to compel appellants to account for one hundred shares of stock of the Ohio Life Insurance and Trust company.

In 1855 appellants were engaged in business in the city of New York, and appellees in Ohio.

The stock in controversy was sent in 1855, accompanied by the following letter and power of attorney:

“MANSFIELD, July 20, 1855.

Messrs. Adams & Buckinghams:

GENTS: We herewith hand your Mr. Brown, Prest's draft on the Ohio Life Insurance and Trust Company, N. Y. for $248.94, which please place to our credit, and oblige,

Very respectfully, yours, etc.

E. P. & E. STURGES.”

“We also send herewith certificate for one hundred shares of Ohio Life Insurance and Trust Company stock, owned by us, and power of attorney for your Mr. Buckingham to sell and transfer the same, which you will oblige us by doing to the best advantage, when you can do so at par or over, but not at less than par.

E. P. & E. STURGES.”

“When you sell the Trust Company stock, please place the proceeds to our credit.

E. P. & E. STURGES.”

“Know all men by these presents, that we, E. P. & E. Sturges, of Mansfield, Ohio, do hereby constitute and appoint John Buckingham, of New York city, our lawful attorney, for us and in our name, to sell, transfer and assign one hundred shares of the capital stock of the Ohio Life Insurance and Trust Company, standing in our names on the books of said company; with power also, an attorney or attorneys under him for that purpose, to make and substitute with like power, and to do all lawful acts requisite for effecting the premises, hereby ratifying and confirming all that my said attorney or his substitute or substitutes shall do therein, by virtue of these presents.

In witness whereof, we have hereunto set our hand and seal, this twentieth day of July, A. D. 1855.

E. P. & E. STURGES. [ Seal.]”

The following was the reply:

“NEW YORK, July 23, 1855.

Messrs. E. P. & E. Sturges, Mansfield, Ohio:

Yours of the twentieth is received, with inclosures, as stated. We credit you under date. M. Brown, P. B. on Ohio Life Insurance and Trust Company, $248.94. Certificate one hundred shares O. L. I. & T. Co. received; will attend to the sale as directed; it is fluctuating; last sold five shares, c $100.

ADAMS & BUCKINGHAMS,

Per E. A. BEIDEN.”

In September, 1857, appellants failed in business, and made an assignment for the benefit of their creditors. Prior to their failure, in July or August, 1857, the Ohio Life Insurance and Trust Company ceased to do business, and has not since opened books for the transfer of stock.

At the time of the assignment, appellees, and also the firm of E. Sturges, Sr. & Co. had claims against appellants, exclusive of the stock in the insurance company. The amount of this indebtedness was agreed upon, and arrangements were made to secure it. Finally, Ebenezer Buckingham, one of appellants, secured the claims, by depositing, as collateral security, the notes of one Hart. This was done in 1862. The notes were the individual property of E. Buckingham.

A good deal of correspondence ensued between the parties, but no mention was ever made of the stock until 1862, about five years after the failure. During the year 1867 we find the following letter:

“MANSFIELD, June 29, 1867.

E. Buckingham, Esg. Chicago:

DEAR SIR: We send by the bearer, S. B. Sturges, Esq. a statement of Messrs. Adams & Buckinghams' account with E. P. & E. Sturges, and due July 1, 1867, $6,435.09. Also statement of Messrs. Adams & Buckinghams' account with E. Sturges, Sr. & Co. amount due September 1, 1866, $2286.79, which accounts you will oblige us by settling with him.

Very respectfully, yours, etc.

EDWARD STURGES, SR.

Surviving partner of the firm of E. P. & E. Sturges.

E. STURGES, SR. & CO.

E. Buckingham wrote, in reply, that he had paid the claim of E. Sturges, Sr. & Co. and $2500 on account of the claim of appellees. In this letter, of date July 11, 1867, E. Sturges, the surviving partner, was informed that appellants had the one hundred shares of stock, and were ready and willing to make a proper transfer of them. No reply was made, and on the thirtieth day of January, 1868, E. Buckingham again wrote, to the same effect. Sturges replied that they would not accept the shares offered, in place of those sent in 1855, and that he desired to know relative to any transfer of the stock, and the use which had been made of it.

These facts show a very remarkable and almost stolid indifference, on the part of appellees, in relation to this stock. In 1855 it was forwarded for sale. The insurance company failed in 1857, and appellants made their assignment in the same year, with the knowledge, and express assent, of appellees.

The indebtedness between the parties, excluding the stock, was adjusted. Five years elapsed before any demand was made for the certificate of stock, or even a whisper was heard as to its value, or any pretense of claim was set up against appellants. Tested by the known motives which prompt human action, this conduct of appellees is indeed marvelous, upon the hypothesis that they thought they had a valid claim against appellants for this stock.

In 1868 E. Buckingham paid the indebtedness to the two firms, as agreed upon. Prior to this the Hart notes had been placed in the hands of one Charles M. Sturges, an attorney, for collection. He retained the sum of $9795.59, and refused to pay it to E. Buckingham, for the reason that appellees claimed that the notes were deposited as collateral security for any amount which might be due to them from appellants, upon a final settlement. The evidence is perfectly satisfactory that the notes were not deposited for such purpose, or under such arrangement. They were merely security for the debt which had been discharged. The money in the hands of Charles Sturges, then, belonged to E. Buckingham.

He commenced a suit for its recovery, and appellees then filed this bill to enjoin the prosecution of the suit, and...