Birdsell Mfg. Co. v. Oglevee

• Citation: 58 N.E. 231,187 Ill. 149
• Parties: BIRDSELL MFG. CO. v. OGLEVEE et al.
• Decision Date: 19 October 1900
• Court: Supreme Court of Illinois

187 Ill. 149

58 N.E. 231

BIRDSELL MFG. CO.

v.OGLEVEE et al.

Supreme Court of Illinois.

Oct. 19, 1900.

Appeal from appellate court, Third district.

Action by the Birdsell Manufacturing Company against William H. Oglevee and others for damages for the conversion of property. From a judgment of the appellate court (87 Ill. App. 351) affirming a judgment in favor of the defendants, the plaintiff appeals. Affirmed.Shope, Mathis & Barrett, J. B. Hutchinson, and Moore, Warner & Lemon, for appellant.

Geo. K. Ingham, B. F. Shipley, and Mills Bros., for appellees.

On January 11, 1895, appellant, an Indiana corporation, made a consignment of wagons and other property to the Leavitt & Oglevee Company, an Illinois corporation, the consignee agreeing to sell the same, and to remit the proceeds thereof, when sold, to appellant. A part were sold and remitted for. On December 18, 1895, the Leavitt & Oglevee Company traded the balance of the property consigned to it by the appellant, invoiced at at $1,475.15, with other property, to one Evans, for the equity in a tract of land located in the state of Missouri. On January 26, 1896, and again on December 7, 1896, the appellant was advised of this trade, and all the details thereof, and made no objections thereto. In Jury and August, 1895, the Leavitt & Oglevee Company was garnished, as a debtor of appellant, at the suit of the Illinois Malleable Iron Company and the Independent Fire-Sprinkler Company, for the respective sums of $635.19 and $414.50, and for which sums, on December 8, 1896, by the consent of appellant, judgments were rendered against the Leavitt & Oglevee Company. These judgments were afterwards set aside on the ground that no judgments had been rendered against the appellant prior to the rendition thereof. Later, however, judgments were rendered against appellant, and the judgments against the garnishee were renewed. On November 26, 1897, this suit was brought in assumpsit against the appellees, as individuals, for the purpose of recovering the balance due appellant from the Leavitt & Oglevee Company, that company having become insolvent, and the appellees having been the officers and managers thereof at the time the trade was made with Evans. Later the form of action was changed to trover. A jury having been waived, a trial by the court resulted in a finding and judgment in favor of appellees, which judgment has been affirmed by the appellate court for the Third district, and the present appeal is prosecuted from such judgment of affirmance.

HAND, J. (after stating the facts).

The appellant insists there is no evidence to support the judgment in this case, and for that reason, mainly, asks for a reversal thereof. We have looked into the record carefully, and are of the opinion it contains some evidence tending to show that after appellant was notified of the transfer to Evans it acquiesced therein, treated its consignment as a sale to the Leavitt & Oglevee Company, and thereby waived the alleged tort, and elected to accept such company as its contract debtor. Whether this evidence is weak or strong is not a question for this court, as the judgment of the appellate court in respect to the facts, where there is any evidence tending to support the judgment, is final, and cannot be reviewed by this court. Railroad Co. v. Kelly, 127 Ill. 637, 21 N. E. 203;Packet Co. v. Gattman, 127 Ill. 598, 20 N. E. 662;Cothran v. Ellis, 125 Ill. 496, 16 N. E. 646;Machine Co. v. Burandt, 136 Ill. 170, 26 N. E. 588;Hawk v. Railroad Co., 138 Ill. 37, 27 N. E. 450;Syrup Co. v. Carlson, 155 Ill. 210, 40 N. E. 492.

The appellant contends that the Leavitt & Oglevee Company and the appellees are joint tort feasors, and that the evidence of waiver as to the company is immaterial; that it may elect to waive the tort as to the Leavitt & Oglevee Company, and afterwards sue the appellees in an action ex delicto for the conversion of its property wrongfully turned over to Evans. A corporation can act only through its officers or agents. If the Leavitt & Oglevee Company wrongfully converted the property of appellant at the time of the transfer to Evans, and thereby made itself liable to an...