Cooper v. Ray

• Decision Date: 31 January 1868
• Parties: JOSHUA J. COOPERv.SAMUEL E. RAY.
• Court: Illinois Supreme Court

47 Ill. 53

1868 WL 4929 (Ill.)

JOSHUA J. COOPER

v.SAMUEL E. RAY.

Supreme Court of Illinois.

January Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Coles county; the Hon. JAMES STEELE, Judge, presiding.

The opinion states the case.

Mr. O. B. FICKLIN, for the appellant.

Mr. JOHN SCHOLFIELD, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of replevin, brought by Joshua J. Cooper, in the Coles Circuit Court, against Samuel E. Ray, for the recovery of an omnibus. The declaration was in the usual form. Defendant filed a plea of non detinet, and a plea of property in himself, also pleas averring a several ownership in three other persons. Replications were filed to the several pleas, and issues formed. A jury was waived by consent, and a trial was had by the court. The issues were found for the defendant, and a judgment of retorno habendo was rendered in his favor, from which this appeal is prosecuted.

It appears from the evidence, that James W. Cooper and Josiah F. Cooper, in June, 1865, purchased the omnibus in dispute, from Daniel Sinnbelt, of Decatur, for the sum of three hundred dollars. They borrowed of one Stoner one hundred and fifty dollars, to pay on the purchase, and gave to him a mortgage on the property to secure its payment. This debt and mortgage matured on the 4th of March, 1866. When the mortgage fell due, they, without the knowledge of appellant, agreed to sell Stoner two of his horses, which were then used in running the omnibus, to satisfy the mortgage. The horses were to be delivered on the first of the following September; but when they came to deliver the horses, appellant objected, unless they would secure him for the price of the horses. It was then agreed that he should hold the omnibus to secure the payment of the price of the horses and twenty-five dollars advanced by appellant, to pay the freight on the omnibus, making in all the sum of one hundred and seventy-five dollars, and it was delivered to appellant at the time the arrangement was made.

That James and Joshua Cooper were indebted to appellee in the sum of sixty-six dollars, and to secure him they gave a chattel mortgage on the vehicle, on the 22d day of November, 1866; but they at the time failed to notify him, that it was pledged to appellant; that after it was pledged, James Cooper, in September, 1866, run it four days at the Charleston fair, and in the latter part of October, 1866, about the same length of time, at the fair at Mattoon; that, on each of these occasions, it was used with the consent of appellant. About the 22d of December following, James called upon Ray to learn about the payment of his debt, then about falling due, when the latter said it was immaterial, as he expected that he would want the omnibus in a short time, and if so, would want to buy it; and said if he should not want to purchase it, they could pay the money after the mortgage became due. Two days after the maturity of the mortgage, James saw appellee, and he refused to purchase the omnibus; in the meantime he had taken possession of it, without the consent of the mortgagors; that on the 30th of January, 1867, James tendered to appellee the money due on the mortgage, with interest, which he refused to receive, and refused to give up the omnibus. It appears that appellant's debt was never paid, but remained due in full. It also appears that appellee's mortgage was not recorded until some eleven days after its ...