Burrows v. Guthrie

• Decision Date: 30 September 1871
• Citation: 1871 WL 8201,61 Ill. 70
• Parties: ROBERT BURROWSv.OSSIAN GUTHRIE et al.
• Court: Illinois Supreme Court

61 Ill. 70

1871 WL 8201 (Ill.)

ROBERT BURROWS

v.OSSIAN GUTHRIE et al.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Messrs. TURNER, BRAWLEY & TURNER, for the appellant.

Messrs. HARDY & HERRICK, for the appellees.

Mr. JUSTICE BREESE delivered the opinion of the Court:

This is an appeal from the circuit court of Cook county to reverse a judgment rendered on a motion by appellee for a rule upon appellant requiring him to comply with a certain award.

It appears the award was made and published on the 30th of September, 1869, and being produced in court on the 23d of October, 1869, appellant filed eight objections to the award, and to the entry of judgment thereon, all which objections were traversed by appellees, and they pleaded, as in estoppel thereof, that after signing and sealing the award, and before the same was filed in court, appellant freely, voluntarily and fully consented to and accepted the award as binding and conclusive upon him in all things, and that he acted upon the award by making, executing and delivering to appellees, on the 30th day of September, 1869, his receipt or release in writing in full of all demands, and a release of all actions, suits, controversies, claims and demands whatsoever in accordance with the said award; that he took his share of the loose property, paid his portion of the expenses of the arbitration, and accepted the horses, wagon and harness awarded to him, and allowed Ossian Guthrie to act as trustee or receiver, with his full knowledge and consent; and they further averred, in their plea of estoppel, that they themselves had, in good faith, accepted the award with all its conditions, and have, since its date, acted under it, and that Ossian Guthrie made, executed and delivered to appellant a bond of indemnity precisely as required by item seven of the award, conditioned as therein required, and thereafter proceeded to collect the debts due the firm, and to pay the debts of the firm; and they further averred that, upon filing the award in court, they had, in good faith, and with the knowledge and consent of appellant, paid all the outstanding debts of the firm, as provided in said award, and were ready and willing to carry out the award fully.

There was no issue made up on this plea, and at the January term, 1871, of the circuit court, appellant withdrew his objections, whereupon it was ordered that judgment be entered on the award, with costs to be taxed; and it was further ordered that the respective parties to the award be required to do and perform the several and respective acts and things which, by the award, they were severally and respectively directed and awarded to do.

At the April term following, appellant entered his motion for a rule upon Ossian Guthrie to make and file, under oath, a detailed and itemized statement of all his receipts and disbursements as receiver and trustee under and by virtue of the award. This report was made by the trustee and receiver to the following June term of the court, and duly sworn to, and to which no exception was taken.

At the same term appellees had entered their motion, based on affidavits, for a rule upon appellant to comply with the award in these particulars, namely:

1. That he deliver to Ossian Guthrie sixty-seven thousand feet of lumber, consisting of scantling, joists and piece stuff, which was, by the 8th and 9th specifications of said award, ordered into the custody of said Ossian Guthrie.

2. That he dismiss, at his costs, the replevin suit of Robert Burrows v. George Kretsinger, Frederick S. Kretsinger, Wardell Guthrie and Ossian Guthrie, now pending in the Superior Court of Cook county, by virtue of which suit he, after said award was made and assented to by him, wrongfully obtained possession of said sixty-seven thousand feet of lumber.

3. That he pay to deponents' attorney a reasonable fee for defending said replevin suit, and for such other services as are, in the judgment of the court, made necessary by the wrongful acts complained of.

4. That he at once pay to Ossian Guthrie the sum of one hundred and forty-two and 76-100 dollars, which he, the said Burrows, in violation of specification seven of said award, collected, after said award was made, of T. F. Phillips, on a bill of work done by said Guthrie and said Burrows, pertaining to their co-partnership, previous to said submission to arbitrators.

In their own affidavits accompanying the motion, it is explained that this quantity of lumber was a part of a cargo of the schooner Bean, which Burrows had purchased for the firm of Guthrie & Burrows, of Loomis, Mason & Co., previous to the arbitration, which was then on hand as the property of that firm at the time of the award, and formed a part of the lumber adjudicated upon in the award and referred to in clause “eight,” and was also a part of the lumber mentioned in clause “nine” of the same award, and of which Ossian Guthrie had received a bill of sale, but was not to be delivered by him to Burrows, for the reason that the entire cargo was charged to the firm of Guthrie & Burrows, and paid for out of moneys charged by him to said firm in his account rendered to the arbitrators, and which account was used by the arbitrators as the basis of their award. And it is also alleged in the affidavit, that this lumber was, at the time of the commencement of the replevin suit by Burrows, in the possession of the Kretsingers on their dock, or in store for the firm of Guthrie & Burrows; and long after the award was made, and, in fact, executed and fully assented to by both parties, Burrows falsely made an affidavit in replevin that he was the owner, and lawfully entitled to the possession of that lumber, and, in direct violation of the award, by virtue of the writ of replevin, seized and took away from the deponents the lumber, the sole right to the possession of which he, Burrows, well knew was vested in said Ossian Guthrie by the award.

And they further allege, in their affidavit, that Burrows, ever since the seizure of the lumber, has kept possession of it, and excluded Ossian Guthrie from his rightful possession thereof, to their great injury and the great delay and hindrance of their business; that, by reason of the unjust action of Burrows, deponents have been compelled to employ counsel to defend the replevin suit, both for themselves and for the Kretsingers, who were merely the custodians of the lumber for Ossian Guthrie, and not interested in the possession of the same.

Deponents further say, that, in the further violation of the award, Burrows, on the 23d of March, 1870, collected of one T. F. Phillips the sum of one hundred and fifty-two 76-100 dollars on a debt due the firm of Guthrie & Burrows in respect of their partnership transaction, and specially mentioned in clause “seven” of the award, and appropriated the same to his own use, and has ever since retained that money, well knowing that Ossian Guthrie alone was entitled to receive that and all other moneys due that firm.

An answer was put in by appellant to these allegations, verified by his own affidavit, and the court fully examined all the testimony produced by the parties on the hearing of the motion, which included the affidavits of the arbitrators and of the Kretsingers, and the order of the court made at the January term, 1871, above recited, entering a judgment upon the award at that term, all objections to the award having been withdrawn by appellant.

The testimony introduced by appellant in no respect weakens the claim set up by appellees to have the rule as moved for.

The court, after a hearing of all the evidence, entered judgment substantially as follows:

That said Robert Burrows, within five days from the entry of this order, deliver to said Ossian Guthrie sixty-seven...