Dunning v. Mead

• Decision Date: 30 September 1878
• Citation: 1878 WL 10167,90 Ill. 376
• Parties: J. D. DUNNING et al.v.J. S. MEAD et al.
• Court: Illinois Supreme Court

90 Ill. 376

1878 WL 10167 (Ill.)

J. D. DUNNING et al.

v.J. S. MEAD et al.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Kane county; the Hon. HIRAM H. CODY, Judge, presiding.

Messrs. BROWN & SOUTHWORTH, for the appellants.

Mr. A. J. HOPKINS, for the appellees.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that in February, 1874, F. W. Moore rented to Eugene Newell a house and lot, as claimed, for one year, for the sum of $225, payable monthly, at $18.75 per month. Newell paid rent, as agreed, for seven months, and up to the 26th of September, but made no more payments. Moore having removed to Iowa, he, in the month of December thereafter, appointed J. D. Dunning his agent, to collect the balance of the rent, and in March, 1875, Dunning collected $25 thereon, and received the keys of the house. In June following, Dunning, as agent of Moore, issued a landlord's warrant to Graves, as bailiff, to distrain for rent to the amount of $70. He distrained the goods in controversy, and the Meads brought replevin for their recovery.

It also appears, that in August, 1874, J. D. Dunning rented to Newell & Walker, for a year, a storehouse, for $420, payable $35 per month, in advance. The south third of the storehouse belonged to J. S. Dunning, who also resided in Iowa, and the other two-thirds to J. D. Dunning, who was the agent of J. S. Dunning; that $15 per month of the rent was for the latter, and $20 per month for the former; that J. D. Dunning's portion of the rent was paid up to July 1, 1875, but no part of J. S. Dunning's was paid. In June, 1875, J. D. Dunning issued for his principal a distress warrant against Newell & Hodges, the tenants then occupying the premises (Hodges having become a partner of Newell), to Graves, as bailiff, to distrain for $170 rent, then claimed to be due, which warrant was executed by levying on the property in dispute.

It also appears, that Newell & Hodges gave to the Meads a mortgage on their stock of groceries, and tools and implements in their butcher shop, to secure the payment of $815.75, evidenced by notes. The mortgage was in the usual form, providing the mortgagors might retain possession of the goods until the maturity of the debt. It also appears that they continued to sell the groceries and to carry on their butcher shop, as before. They, however, purchased no additions to their stock of groceries. It is claimed that they made no sales until authorized by letter from the mortgagees, who directed them to do so, but to retain the proceeds of the sales, subject to the order of the mortgagees. Newell claims that he held the money, but on cross-examination admits that they used $150 thereof in their meat business.

The jury, on the trial in the court below, found a verdict for the plaintiffs, and after overruling a motion for a new trial, the court rendered a judgment on the verdict, and defendants appeal to this court.

The mortgage, on its face, was regular, and apparently valid and binding as to all persons. But the mortgage bears date the 3d day of June, 1875, and on the next day the mortgagees wrote a letter to the mortgagors, by which they...