Brandt v. Daniels
| Decision Date | 30 September 1867 |
| Citation | 1867 WL 5307,45 Ill. 453 |
| Parties | DANIEL R. BRANDTv.WILLIAM Y. DANIELS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.
The facts in this case are fully stated in the opinion.
Mr. G. W. BRANDT, for the appellant.
Messrs. STORRS & JOHNSTON, for the appellee.
This was an action of trover for certain chattels. The case was: one Van Osten executed a mortgage to Daniels on chattels of the description of those in controversy, to secure a debt. Van Osten, with the knowledge and consent of Daniels, sold the chattels to one Harpel, he (Harpel) giving a new mortgage thereon to Daniels. Parties acting in the firm name of Gallagher & Hunter proposed to purchase the property from Harpel, and were informed, by the record, of the mortgage to Daniels. They concluded the purchase from Harpel with Daniels' consent, he (Daniels), without taking a new mortgage from Gallagher & Hunter, relying upon their verbal promise to pay him the debt due by the mortgage in ninety days. Gallagher & Hunter took possession of the chattels and of the leased property in which they were, made alterations in them and mixed them up with other similar chattels greatly exceeding them in value, and, on the strength of their possession and open ownership, contracted a large debt with Brandt, he (Brandt) having no personal knowledge of any incumbrance on the property, they assuring him it was entirely unincumbered.
The debt not being paid at maturity, Brandt foreclosed his mortgage and bought in the property. Daniels made a demand on him for it, and on refusal brought his action of trover, and recovered a judgment for $250.
The question is, who had the best right to these chattels?
We are of the opinion, that, by the consent of Daniels to the sale by Harpel to Gallagher & Hunter, and the transfer of possession to them, on their parol promise to pay him in ninety days, Daniels waived his mortgage as against Brandt, who was a subsequent purchaser for value, without notice.
The instructions which the court gave for plaintiff contravening this principle were wrong, and the court should have given the following instruction asked by defendant:
“If the jury believe, from the evidence, that, when Harpel and Gallagher & Hunter were negotiating a sale of the chattels mentioned in the declaration, Daniels was informed of said...
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