Bertholf v. Quinlan Bros. & Co.
| Decision Date | 30 June 1873 |
| Citation | 1873 WL 8346,68 Ill. 297 |
| Court | Illinois Supreme Court |
| Parties | WILLIAM H. BERTHOLFv.QUINLAN BROS. & CO. |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.
Mr. HENRY C. GOODNOW, and Mr. W. R. HUBBARD, for the appellant.Mr. B. B. SMITH, for the appellees
This was an action of trover, in the Marion circuit court, for six barrels of whiskey, and verdict and judgment for the plaintiff.
To reverse this judgment the defendant appeals, and makes the point that the action is misconceived--that trover is not the appropriate remedy, as appellant obtained possession of the property under color of a contract, and that if the action could be maintained it should be brought in the name of Cramer.
To understand the force of this objection, it is necessary to state, that appellees were a firm, doing business in St. Louis, Cramer being a traveling agent to solicit orders and make collections, and to sell goods for cash. A part of the whiskey in question had been sold by appellees to one Lynch, doing business at Kinmundy, for which, and on other accounts, Lynch was indebted to appellees four hundred dollars. Lynch had purchased other whiskey of another house, and had mortgaged it to one Haworth, to secure two hundred dollars. Cramer applied to Haworth to release his mortgage on a part of the whiskey, which being declined he agreed to release it on the whole lot, if Cramer would pay his claim. This Cramer concluded to do, and drew on appellees at St. Louis for two hundred dollars. This draft was indorsed by appellant, and cashed at the Kinmundy bank, and the proceeds paid over to Lynch, who, thereupon, released his claim on the property. Appellant claims, that on this being done he purchased the whiskey from Cramer, giving him therefor a piano. It is claimed by appellant, and he so testified on the trial, that the sale was absolute and unconditional, whilst appellees insist the exchange was made by Cramer, subject to their approval-- and so Cramer testifies. It is in proof that appellees, when notified by Cramer of the trade, promptly repudiated it, and soon afterwards made a demand upon appellant to deliver up the whiskey, which he refused.
There are facts proved, tending to show this trade for the piano was an absolute sale, but the jury have found there was sufficient evidence to show a conditional trade only--a trade subject to the ratification of appellees; and we can not say they have given undue weight to the testimony leading to such a conclusion. All the facts were before the jury, and we can not say they have found against them.
As to the legal proposition, we understand the rule to be, if a person is in possession of the property of another claiming it as his own under a contract, by a title adverse to that of the owner, the latter, after demand and refusal, may maintain trover. The plaintiff in such action must show that he has either a general or a special property in the thing converted, and the right to its possession.
As to the instructions, we think they fairly stated the law to the jury, and though some of them may not possess entire legal accuracy, they could not have misled the jury. For the appellant these instructions were given: “The court instructs the jury, that if you believe, from the evidence, that Cramer had authority to sell the whiskey in question to the defendant, and if you further believe, from the evidence, that Cramer did so sell the whiskey to Bertholf, and deliver the whiskey to him, then the trade is complete, and the title to the whiskey rests in Bertholf, and the title can not be diverted, except by a failure of the conditions on the part of Bertholf, and you should find for the defendant.
The court instructs the jury, for the defendant, that if you believe, from the proof, that Cramer was the general agent of the plaintiffs, and that Cramer, in former transactions, had sold the defendant whiskey and taken property of defendant in pay or part pay for the same, and that plaintiffs had settled with defendant, recognizing the payment in property as good, then the defendant has a right to trade property for whiskey, and the plaintiffs are bound thereby, unless you find the sale was made in this case subject to the approval of the plaintiffs.
The Court instructs the jury, that if you believe, from the...
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