Badger v. the Batavia Paper Mfg. Co.

• Decision Date: 30 September 1873
• Parties: ALPHEUS BADGERv.THE BATAVIA PAPER MANUFACTURING COMPANY et al.
• Court: Illinois Supreme Court

70 Ill. 302

1873 WL 8605 (Ill.)

ALPHEUS BADGER

v.THE BATAVIA PAPER MANUFACTURING COMPANY et al.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kane county; the Hon. SILVANUS WILCOX, Judge, presiding.

This was an action of trover, by Alpheus Badger against The Batavia Paper Manufacturing Company and William M. Van Nortwick, to recover for the conversion of a rotary boiler and attachments. A trial was had, resulting in a judgment in favor of the defendants, from which the plaintiff appealed.

Mr. EUGENE CANFIELD, for the appellant.

Mr. A. M. HERRINGTON, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of trover, for the alleged conversion of a rotary boiler and attachments.

The Chicago Fibre and Paper Company, on September 1, 1859, bought of the Eagle Works Manufacturing Company the property, and gave a chattel mortgage thereon, to secure the payment of its note of that date for the purchase price. The boiler was set up at the works of the first named company, at Batavia, in Kane county.

The boiler was 25 feet long, 7 feet in diameter, weighing about 10,000 pounds. It had to be placed outside of the building then at the works, and a building was erected over it, 35 feet by 15 feet, on the ground, and about 15 feet high. In order to remove the boiler, after the mortgage money became due, nearly the entire west end of this building over the boiler would have had to be removed. The mortgage contained a clause that, in default of payment, etc., the mortgagee might take possession, “and for that purpose, may pursue the same (the mortgaged property) or any part thereof, wherever it may be found, and also may enter any of the premises of said party of the first part, with or without force or process of law, and take possession of and remove and sell and dispose of the same.” The note was assigned to Badger, the plaintiff. Subsequently, and before the maturity of the note, The Chicago Fibre and Paper Company became and was declared bankrupt, and the premises upon which the boiler was, were, by the assignee in bankruptcy, sold and conveyed by deed to the Batavia Paper Manufacturing Company, one of the defendants, with the following express exception in the sale and deed: “Except one rotary boiler, 25 feet long and 7 feet in diameter, which was furnished by P. W. Gates & Co. since the execution of the trust deed in said petition and order mentioned, and which is incumbered by a chattel mortgage to secure the purchase money thereof, which has been assigned to Alpheus C. Badger.” It was in evidence that the Eagle Works Manufacturing Company was known and called by the name of P. W. Gates & Co.

There were a verdict and judgment against the plaintiff in the court below, and he appealed, and assigns for error the giving and refusing of instructions.

In regard to the conversion, the evidence on the part of the plaintiff was, that, on the maturity of the mortgage, preparations were made by him to remove the boiler; that his agents went upon the premises and attempted to remove the boiler, and were forbidden to do so, by the defendants, until Badger should first pay the expenses they claimed had been incurred in fitting up another room for a certain purpose, which room they were obliged to fit up, on account of the boiler occupying the room they would otherwise have used for that purpose. The testimony on the part of the defendants was in...