Bailey v. Godfrey

• Decision Date: 30 September 1870
• Citation: 5 Am.Rep. 157,1870 WL 6368,54 Ill. 507
• Parties: SAMUEL L. BAILEYv.WILLIAM GODFREY et al.
• Court: Illinois Supreme Court

54 Ill. 507

1870 WL 6368 (Ill.)

5 Am.Rep. 157

SAMUEL L. BAILEY

v.WILLIAM GODFREY et al.

Supreme Court of Illinois.

September Term, 1870.

APPEAL from the Circuit Court of Lee county; the Hon. W. W. HEATON, Judge, presiding. This was an action of trover, brought by Bailey against Godfrey and Charters.

The title of the plaintiff to the property in controversy, was derived under a chattel mortgage, executed to him by Charles F. Green, on the twenty-sixth of April, 1869. The mortgage stipulated that Green was to retain possession of the property until the day of payment, and contained a proviso, as follows:

“And, provided also, that if default in payment as aforesaid by said party of first part shall be made, or if said party of the second part shall, at any time before said notes, or either of them, become due, feel himself unsafe or insecure, that then the said party of the second part, or his attorney, agent, assigns or heirs, executors or administrators, shall have the right to take possession of said goods and chattels, wherevcr the same may or can be found, and sell the same at private or public sale,” etc.

The instructions upon which the questions of law arise, are set forth in the opinion of the court.

Mr. WILLIAM BARGE, for the appellant.

Mr. B. H. TRUSDELL, for the appellees.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

The questions presented by this record may all be considered on the errors assigned, that question the rulings of the court in giving, modifying and refusing instructions at the trial.

The appellant seeks to recover of the appellees, for the price and value of a certain lot of wool, sold by one Charles Green to the appellees, for which they paid him the full market price, which, it is alleged, belonged to the appellant, and which the appellees converted to their own use.

The action was brought in replevin, but the property not being found, a count was added in trover. The appellant claims title to the property under and by virtue of a chattel mortgage, executed by the said Charles Green to him, which mortgage contained a condition that if, at any time before the notes became due, to secure which the mortgage was given, the mortgagee should feel himself “unsafe or insecure,” he might, in that event, take immediate possession of the property described in the mortgage, wherever it could be found, and proceed to sell the same to satisfy his debt.

Before the notes became due, Green, the mortgagor, removed the property, without the knowledge or consent of the appellant, from Ogle county, where the mortgage was executed and recorded, to Lee county, and there sold the same to appellees. There is no evidence that tends to show that the appellees had any knowledge of the existence of a mortgage, or the lien created by it, at the time they purchased the wool from the mortgagor.

On the trial, the court held the law to be, and so instructed the jury, that “a stipulation in a chattel mortgage, that the mortgagor shall retain the use and custody of the mortgaged property until he makes default in the payment of the mortgage debt, will debar the mortgagee from recovering in trover the value of said property, which may be purchased of the mortgagor prior to such default.”

If it is intended by this instruction to assert the principle that, before a party can recover in trover, he must either have the actual possession of the property, or the immediate right of possession thereof, then it certainly states a correct principle of law. 1 Chitty's Pl. 148, and authorities there cited.

We are unable to perceive that the rule attempted to be asserted in the instruction, has any application to the case before us--certainly not in the form as there stated. An instruction may often contain a correct abstract principle of law, yet may be so worded as to tend to mislead a jury. The true test to apply to this instruction, if we admit it states a correct principle of law, is, did it tend, in this instance, to mislead the jury on the facts submitted to them in this particular case? It is undoubtedly true that a party, before he can maintain trover, must have had the actual possession of the goods claimed to be converted, or the right to the immediate possession thereof.

The exact question involved in this case may be logically stated thus: The clause in the mortgage which provided that, in case the mortgagee should feel ““unsafe or insecure” in regard to his debt, gave the mortgagee the right to elect when he should take possession of the goods. By the express terms of the mortgage, the mortgagee was invested with the power to elect, and was made the sole judge of the happening of the contingency when he would elect, to take possession of the property. In his judgment, that...