Diversy v. Kellogg

• Decision Date: 30 April 1867
• Citation: 44 Ill. 114,92 Am.Dec. 154,1867 WL 5109
• Parties: MICHAEL DIVERSYv.EPENETUS B. KELLOGG.
• Court: Illinois Supreme Court

44 Ill. 114

1867 WL 5109 (Ill.)

92 Am.Dec. 154

MICHAEL DIVERSY

v.EPENETUS B. KELLOGG.

Supreme Court of Illinois.

April Term, 1867.

APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Judge, presiding.

This was an action of assumpsit brought by Ebenetus B. Kellogg, in the Superior Court of Chicago, on the 25th of February, 1864, against Michael Diversy, to recover the price of a pipe of Cologne gin. The declaration contained the common counts. The defendant pleaded the general issue, with notice of recoupment and set-off. On the 4th of September, 1866, a trial was had before the court and a jury.

It appeared on the trial, that, on the 29th of September, 1862, one James M. Combs, a traveling agent to solicit orders for Kellogg, a wholesale liquor dealer in New York, while in Chicago, received an order from Rose, the son-in-law and general agent of defendant, having charge of his store, and doing business for him. The order was for three-fourths of a pipe of Cologne gin, and the directions were to ship it by the Western Transportation company's line. The order was filled by plaintiff shipping the gin to defendant. The pipe contained one hundred and thirty-eight gallons, and was shipped by the transportation company as directed.

The gin reached Chicago by way of the Michigan Southern railroad, before the 18th of November, 1862. After lying some days in the depot, it was sent to the warehouse of Keogh, the agent of lost freight. He mailed a notice to defendant, and the next day Rose went with the notice, representing himself as acting for defendant, paid the charges, receipted for it in defendant's name, and took it away. He at first objected to the charges and threatened to replevy the gin. On the 18th of November, in raising the cask to an upper story of Myers & Turney's store, it fell, and was bursted, and the liquor was lost. It was taken from the freight house to Myers & Turney's, to whom defendant had previously sold his stock.

It appears, that Rose was there after the sale, still engaged in settling the business of defendant, up to the time the gin was lost. Shufeldt says, that at the time it was destroyed, Rose was still acting to all appearances as he had before for defendant, and that he purchased of defendant, or Rose, a pipe of gin about that time. Turney swears that Rose obtained of him permission to store the gin in their house. Shufeldt swears that at the time he purchased the pipe of gin, Rose said that he and defendant had another cask which had fallen through the hatchway. Rose seems to have called on other parties to examine the gin to see if it was according to the sample.

There was testimony that the gin was of inferior quality, and not worth more than one dollar per gallon, instead of two and a quarter, the contract price. Cowles swears, that the gin shipped was of the quality ordered, and worth the sum agreed to be paid. There was testimony, that after the gin was taken into possession by Rose, Combs tried to sell the gin to other persons, saying that it was not satisfactory to defendant.

Defendant asked a number of instructions, the fifth and tenth of which the court refused to give. They are these:

“5. The plaintiff can only hold Mr. Diversy for the acts of Mr. Rose, by showing that, at the time when Rose received the gin, he was either Diversy's general agent, acting within the scope of his authority, or else that he had specific authority to receive that particular pipe of gin on Diversy's behalf; and unless the jury find from the evidence, that Rose's general agency was continued after Diversy had sold out his business and store to Myers & Turney, or that Rose was specially authorized by Diversy to go to Keogh's and get that particular pipe of gin, Mr. Diversy is not holden for his acts or declarations in the premises, and the law on this point is for the defendant.”

“10. If the transaction was merely a conditional order to send a certain quality of gin, if they could find it, and Diversy received no advice of shipment, he was not compelled to notify plaintiff that Rose's agency had ceased, in order to relieve himself from responsibility for Rose's unauthorized acts, after Diversy had sold out to Myers & Turney.”

The defendant's ninth instruction, as asked, is this:

“9. If a party produces a document containing certain statements which are uncontradicted by other evidence in the case, such uncontradicted statements are, as against the party producing the document, evidence of the facts so stated. If, therefore, Mr. Diversy's affidavit, produced by plaintiff, states that the contract was rescinded, or that Rose's agency had ceased, or any other fact material in the case, such statement of fact is to be presumed to be correct, unless the contrary is proved in the case. The plaintiff can only use Mr. Diversy's affidavit to show admissions against the defendant, and not for the purpose of attacking the defendant's veracity.”

The court, however, modified it before it was given by striking out of the latter part of it, this clause:

“The plaintiff can only use Mr. Diversy's affidavit to show admissions against the defendant, and not for the purpose of attacking the defendant's veracity.”

The jury found a verdict in favor of plaintiff for $138. Defendant thereupon entered motions for a new trial and in arrest of judgment, which were overruled and judgment was rendered upon the verdict; to reverse which he prosecutes this appeal, and urges a reversal, because of the refusal to give his fifth and tenth instructions and in modifying his ninth before it was given; because the verdict is against the evidence; and because the motion for a new trial was overruled.

Mr. EDWARD MARTIN, for the...