Bane v. Detrick

• Decision Date: 30 September 1869
• Citation: 1869 WL 5379,52 Ill. 19
• Parties: WILLIAM C. BANE et al.v.THOMAS DETRICK.
• Court: Illinois Supreme Court

52 Ill. 19

1869 WL 5379 (Ill.)

WILLIAM C. BANE et al.

v.THOMAS DETRICK.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

The opinion states the case.

Messrs. SLEEPER, WHITON & DURHAM, for the appellants. Messrs. HELM & HAWES, for the appellee.

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

This was an action of trover, brought to the Superior Court of Chicago by Thomas Detrick, for the use of C. R. Corbin, against W. C. Bane and Oscar F. Bane, for the conversion of two stocks of goods--one at Garden Prairie, in this State, the other in Marengo, Michigan, the property of the plaintiff.

The general issue was pleaded, and the jury, under instructions from the court, found a verdict for the plaintiff, assessing the damages at three thousand five hundred and thirty-six dollars, for which the court entered judgment. To reverse this judgment, the defendants appeal to this court.

It appears from the record that, in 1866, Detrick was engaged in selling goods on his own account, at a settlement in Boone county in this State, known as Garden Prairie. Early in September of that year, he increased his stock by purchases in Chicago, and, on the first of October thereafter, he entered into an agreement with William C. Bane to buy grain, not then knowing that Oscar F. Bane was in partnership with William C., who, it seems, was the father. After sending two car loads of grain to W. C. Bane, the latter wrote to plaintiff to ship to O. F. Bane & Co., which he afterwards did. Plaintiff carried on his mercantile business, in which the defendants had no interest. He shipped to defendants, on his private account, wheat and other grain, and dressed and live hogs, and also butter, eggs and hides, in which defendants had no interest. The first arrangement was, that W. C. Bane should furnish the money and plaintiff should do the buying and shipping--the profits to be equally divided between them; but when his son, Oscar F., came in, each of them was to have one-third of the profits. Somewhere about the twenty-first of the next January, plaintiff had received a remittance from defendants of twelve hundred dollars, and about that time, he got into a personal difficulty, in which he was seriously injured, to such an extent as to obscure his faculties and render him unfit for business, added to which were some domestic troubles. He suddenly, about the 25th of that month, decamped for parts unknown, leaving his store in charge of one Goodsell, who had arrived there from Wisconsin about the time of the receipt of this money and the injury, and occupied a room with his family in the store building, a portion of which being occupied by plaintiff with his family. Goodsell was an old acquaintance of plaintiff, and had visited him the preceding year. On Sunday night, he told Goodsell he would go to Chicago and see the Banes and settle up with them and when he returned he and Goodsell would settle their business. He gave Goodsell directions what to do in his absence, and said he would return by Tuesday night. He not returning, Goodsell waited until Thursday, and then wrote to Bane & Co. On Saturday, W. C. Bane came out to Garden Prairie, to whom Goodsell stated all the facts he knew. Bane claimed that plaintiff owed them twenty-nine hundred dollars for cash advanced beyond what they had received for produce plaintiff had shipped to them. They then made a rough estimate of the property in the store, grain on hand, &c., when Bane spoke of attaching it, but claimed a right to the grain as a partner, but not in the store. On a suggestion of Goodsell, that such a course would sacrifice the property, it was abandoned, and Bane remained in the store “as though he belonged there,” waiting upon customers, took the books, figured up to see what was standing out, dunned some of the debtors, and remained until his son and partner, Oscar, came out about the middle of the next week. When Oscar came, he and Goodsell invoiced the goods. Goodsell claiming he had invested some seven hundred and seventy-five dollars in the goods, and calling the whole stock $2157, of which, after deducting Goodsell's claim, and another credit in his favor standing on the books, eleven hundred and fifty-two dollars and seventy-eight cents was found to be the value of plaintiff's share of the stock, which Oscar Bane then sold to Goodsell, taking his three notes for the same, payable in six, twelve and eighteen months from August 15, 1867, the date thereof. All these matters Oscar duly reported to his partner, W. C. Bane.

These are the prominent facts in relation to the Garden Prairie store, and the question arises, do they amount to a tortious conversion of this property by the defendants?

It is only necessary to look at the facts to arrive at a correct decision. Bane, both father and son, knew when they were at Garden city, the true position that Goodsell occupied towards these goods. They knew he had no authority to dispose of them in any other way than as an ordinary clerk employed to sell goods. There is no evidence he was a partner, or that he claimed to be. The Banes and Goodsell acted on the assumption that plaintiff had abandoned the property, and an opportunity was thereby presented by which they could make something out of it.

The weight of the evidence most decidedly is, there was no partnership between Goodsell and the plaintiff, or, probably, was designed when plaintiff so suddenly left, for he said, on leaving, he would go and settle with the Banes, and on his return would settle matters with Goodsell. In all the testimony there is nothing stronger than this to establish a partnership, and it utterly fails to do so. This question was fairly presented to the jury and they found there was no partnership, and we fully concur in the finding.

What, then, is there wanting to prove an actual conversion of these goods? We perceive nothing. If entering a man's store in his absence, taking full possession of it and of his books of account, selling from the stock month after month, collecting money of debtors, and then to close it out, selling the remainder to another, is not a conversion, and a tortious conversion, we should be at a loss to define one. Did not appellants convert this property to their own use, and exercise a dominion over it, inconsistent with the right of any other? Did they not by their acts wholly ignore appellee's rights, and did they not do all they could do to deprive the owner of his possession? Did they not know that Goodsell was a mere bailee of the property, and that he could give no authority to them to take possession of the store? and they certainly knew the law conferred upon them no right to invade the possession of appellee in the manner they did. Here was an actual tortious conversion.

But it is said appellants are not jointly liable therefor. This point we will consider, after we have addressed ourselves to the facts in regard to the Marengo stock of goods.

It seems that, after taking possession of and selling out the stock in the Garden Prairie store, it was ascertained that appellee had settled down in Marengo, in the State of Michigan, and opened a small store there. Thither went W. C. Bane, and there he procured a warrant against appellee for his arrest, on the charge of obtaining money on false pretences, and also an attachment on his goods, claiming the appellee owed the firm twenty-one hundred and fifty-eight dollars. He entered appellee's store, with the sheriff having the papers, and accompanied by an attorney, and then declared if appellee would not comply with his terms and settle the claim, he would have him arrested. Appellee disputed the claim, declaring that, on a settlement of their business matters, he would not owe them anything. The sheriff attached the goods, and was looking around for boxes in which to remove them. It was then proposed by Bane that appellee should come to Chicago and settle by the books, to which he at once assented, and promised to pay or secure whatever should be found due from him, he all the while asserting there was nothing due. As security that appellee would do this, Bane proposed that appellee should give him a mortgage on the goods, and also give him what there was at Garden Prairie. If he would do this, he would not have the warrant executed or the goods removed--that he would do nothing until they had a settlement, and then, if the amount thus secured was not coming to him, he would...