Carey v. Use

• Court: Illinois Supreme Court
• Writing for the Court: SHELDON
• Citation: Carey v. Use, 61 Ill. 378, 1871 WL 8277 (Ill. 1871)
• Decision Date: 30 September 1871
• Parties: EZRA CAREYv.FRANKLIN HENDERSON et al. for use, etc.

61 Ill. 378

1871 WL 8277 (Ill.)

EZRA CAREY

v.FRANKLIN HENDERSON et al. for use, etc.

Supreme Court of Illinois.

September Term, 1871.

APPEAL from the Circuit Court of Livingston county; the Hon. CHARLES H. WOOD, Judge, presiding.

Mr. THOMAS L. TIPTON and Mr. L. E. PAYSON, for the appellant.

Messrs. PILLSBURY & LAWRENCE, for the appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

One of the errors assigned on the record in this case is, that the verdict of the jury was manifestly against the evidence. The case, in brief, is as follows: In June, 1866, Henderson & Lane, the appellees, purchased of the Carey Brothers, John, Samuel and William, sons of Ezra Carey, the appellant, a lot of hogs, amounting to about $400, and shortly afterward a lot of cattle, amounting to about $200. The Carey Brothers sued appellees, in the McLean circuit court, and on January 27th, 1868, recovered a judgment against them for $458.76, Lane having paid enough on the stock out of his store to reduce the indebtedness of appellees for the stock so purchased to that amount. Execution issued on the judgment and was paid by Henderson August 8th, 1869, who, after such payment, brought this suit in the name of Henderson & Lane, for his use, against Ezra Carey, the father, claiming that Lane had paid the money for the stock to Ezra Carey, and that the latter loaned the money back to Lane, individually.

According to the testimony of Henderson, he, with Lane, went to Ezra Carey's for the purpose of buying some fat hogs, who referred him to the boys in the field; that he went with Lane and made the purchase of them, telling them he was going to Chicago with the hogs that night, and would pay them for the hogs on his return, which would not exceed three days; that after this they bought the cattle; that he paid to Lane all the money for the hogs and cattle due to the Careys, to pay over to them; that on the 2d day of December, 1866, he had an interview and conversation with Ezra Carey on the subject, when Carey, after stating that Lane was indebted to him about $600, said, “I will tell you just how it was; the money was for the stock that you and he bought, but Lane came to me with the money and settled up for the stock, counted the money out to me on his knee, and offered it to me in his hand, and at the same time asked me for the loan of it, and I let him have it, and felt just as safe as though I had put it in the bank.”

George Falkingham testifies to the same admission substantially, on the part of Ezra Carey, in a conversation he had with him about January 12, 1867. The witness Frankenburg testifies in regard to the same conversation, that Carey was telling Falkingham that Lane was owing him for stock, and that it was good luck that it was not more, as he could have got more money if he had asked for it.

It is first objected that the facts, as testified to by Henderson and Falkingham, would not authorize a recovery against appellant. But they were sufficient to justify the conclusion that the money due for the stock was paid over by Henderson & Lane to Ezra Carey, and received by the latter, and immediately loaned to Lane; and if Ezra Carey had no authority to receive the money for the Carey Brothers, then he would be liable to Henderson & Lane, as...