Burt v. Blake
| Decision Date | 31 December 1883 |
| Citation | 14 Ill.App. 324,14 Bradw. 324 |
| Parties | BENJAMIN BURT ET AL.v.DANIEL W. BLAKE. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Livingston county; the Hon. FRANKLIN BLADES, Judge, presiding. Opinion filed February 29, 1884.
Messrs. WALLACE & TERRY, for appellants.
Mr. W. T. AMENT and Mr. S. S. LAWRENCE, for appellee.PLEASANTS, J.
On January 20, 1882, appellee, a constable, having several executions against appellant Dodwell, indorsed on each a levy upon about five hundred bushels of corn and a buggy loaded in a car of the Wabash, St. Louis & Pacific Railway Company at Cornell, in the county of Livingston, as the property of said appellant; but whether he took actual possession or had control of it is disputed, and upon that point the evidence is conflicting. The car containing the corn and buggy was shipped out on the evening of the next day, and as appellee claimed, by direction of appellants after notice of the levy. Thereupon he brought this suit in trespass, the trial of which upon the general issue resulted in a verdict against the defendants for $342. The court overruled their motion for a new trial and entered judgment upon the verdict, from which they took this appeal.
The evidence preserved in this record shows clearly and without any substantial contradiction that the corn in question was never the property of Dodwell, nor in his possession at the time of the alleged levy.
He had been residing for two years at Arkadelphia, Arkansas, but about ten days before had returned to Livingston county where he previously resided, and having transacted some business there and at Chicago was about to leave for his home. It appears that one Francis Carpenter, who was engaged in the livery and transfer business at Arkadelphia, had written to him while here to buy some corn for his (Carpenter's) account and for that purpose procured and sent him a draft for $250, payable to his order; that Dodwell obtained the money upon it from S. E. Morrow, a banker at Cornell, which he delivered to appellant Burt, who was a grain buyer there, with the request that he would make the purchase for Carpenter; that Burt accordingly bought the corn in question of G. W. Quaif, stating at the time that it was for Carpenter; that he loaded it in the car for shipment to Carpenter, taking the railroad company's receipt to that effect; that Dodwell was not present when it was loaded or when the receipt was taken, nor had any agency in the purchase of it except as above stated; and that it was shipped to and received and used by Carpenter as his corn.
These several transactions were positively testified to by all the parties to each, respectively, and not one of them was contradicted as to any particular relating thereto. Some of them were further proved by the written evidence--the draft, the receipt and the way bill, a copy of which was introduced by the plaintiff--and all were of such a character and so recent that the witnesses could not be mistaken or forgetful concerning them. They were natural, probable, sequent and mutually corroborative. It seems impossible to entertain a doubt in regard to either of them.
From a few collateral circumstances plaintiff attempted to infer fraud and raise some suspicion as to the real ownership. But these at most tended only to impeach the credibility of Dodwell, whose testimony was not at all necessary to establish either of those transactions as stated, and where not fully explained were too inconclusive and trifling to be relied on for any purpose.
To maintain this action the plaintiff must show that at the time of the taking he had possession of the property, actual or constructive, and that it was rightful as against the defendant. 2 Greenl. on Ev., § 613; Cannon v. Kinney, 3 Scam. 9; Dunning v. Fitch, 66 Ill. 51; Miller v. Kirby, 74 Id. 242. And this the defendant may disprove under the general issue. 1 Greenl....
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