Fawcett v. Osborn
| Decision Date | 30 April 1863 |
| Citation | 1863 WL 3198,83 Am.Dec. 278,32 Ill. 411 |
| Court | Illinois Supreme Court |
| Parties | FAWCETT,1 ISHAM & CO.v.OSBORN, ADAMS & CO. |
ERROR to the Superior Court of Chicago.
Trover by plaintiffs in error against defendants in error.
The facts and the questions for determination are sufficiently stated by the court, except the contract between plaintiffs in error and W. H. & F. Stevens, which is as follows:
“It is this day agreed between Fawcett, Isham & Co., of New York city, and W. H. & F. Stevens, of Stevensville, Sullivan county, New York, that said Fawcett, Isham & Co. shall send to said W. H. & F. Stevens what hides they may require for the purpose of being tanned and manufactured into sole leather in their tannery, at said Stevensville, for three years from this date. The number of hides is not to be less than fifteen thousand each year, nor more than twenty-five thousand each year, unless both parties, in writing, shall hereafter agree to increase or lessen the amount. W. H. & F. Stevens, during the said three years, are not to tan hides for any other party. W. H. & F. Stevens agree to receive the hides at a dock in the city of New York, to pay all expenses of transportation to their tannery, to tan and manufacture them into sole leather, in a good and workmanlike manner, to make leather of a quality and a gain in weight equal to that made by all first class tanners, and to return the leather so tanned to said Fawcett, Isham & Co., at a dock in the city of New York, clear of all expenses of transportation. For all which services Fawcett, Isham & Co. agree to pay to said W. H. & F. Stevens five 5 cents per pound for each pound of leather so tanned and returned, which shall be due at the average time of the receipt of each invoice. It is further agreed that all the profit or loss on all the leather manufactured under this contract shall be equally divided between both parties, which shall be determined as follows: After said Fawcett, Isham & Co. shall have sold the leather manufactured from each invoice of hides, they shall deduct from the gross amount of such sales the cost of the hides, with five per cent. added thereto, the amount paid or payable for tanning, all costs and charges of cartage on both hides and leather, inspection, exchanges and interests on all these amounts, till the sales are due, by average; also six per cent. on the gross amount of the sales, and the balance or difference, being gain or loss, shall be equally divided between said Fawcett, Isham & Co. and said W. H. & F. Stevens. Fawcett, Isham & Co. are to take the sole risk of all sales made on credit. W. H. & F. Stevens agree to return the leather from each invoice of hides within eight months from the time they leave the city of New York, provided that each invoice shall not exceed one thousand sides; in such case, they agree to return them in a fair proportionate time; and, provided further, that, in case hides are sent faster than they can be worked, an allowance shall be made in proportion. Fawcett, Isham & Co. shall procure what insurance against fire they may think necessary, one-half of the cost of which shall be paid by W. H. & F. Stevens.
+-------------------------------------------------+
¦NEW YORK, August 7, 1855. ¦W. H. & F. STEVENS, ¦
+---------------------------+---------------------¦
¦ ¦FAWCETT, ISHAM & CO.”¦
+-------------------------------------------------+
McAllister, Jewett & Jackson, and Edward S. Isham, for plaintiffs in error.
Thomas Hoyne and C. A. Gregory, for defendants in error.
This is an action of trover and conversion, to recover the value of two thousand sides of hemlock-tanned sole leather. There was a trial in the superior court of Chicago, and a verdict and judgment for the defendants. The case is brought here by the plaintiffs by writ of error, and on bill of exceptions.
The title to this leather, as between the plaintiffs and the Stevens, was settled by this court in an action of trover brought for the conversion, by the Stevens, of nine thousand sides of hemlock-tanned sole leather, and established in the plaintiffs. Stevens v. Fawcett et al., 24 Ill., 483.
The leather is identified as the leather tanned for the plaintiffs by the firm of W. H. & F. Stevens, and a demand of it was made by the agent of the plaintiffs, of the defendants in whose possession it was found.
How did the defendants acquire a title to this leather?
It seems, from the proof, that a large quantity of hides had been intrusted to W. H. & F. Stevens, the owners of a tannery, by the plaintiffs, to be tanned at a certain price per pound, and on a sale of the leather by the plaintiffs after deducting all charges against it, the net profits were to be divided between the parties. The contract was made in August, 1855, and was to continue three years, Stevens agreeing not to tan hides for others, except for a few customers in the neighborhood during that time. The hides, when tanned, were to be delivered to the plaintiffs at a dock in New York city. In the month of September, 1856, Fletcher Stevens, one of the flrm, shipped, in a clandestine manner, a large quantity of the leather manufactured from the plaintiffs' hides, to places other than the city of New York. During this movement of the leather, Stevens assumed the name of F. Stafford, and had in his employment, a man by the name of William H. Stanton, who, at the suggestion of Stevens, assumed the name of L. L. Stratton. Two thousand sides of this leather were shipped in 1857, by Stevens, to Chicago, consigned to “F. Stafford,” and, on their arrival, were taken possession of by Stanton, under the assumed name of Stratton, who had been sent there by Stevens for that purpose and to dispose of the leather.
Stanton--Stratton, soon made the acquaintance, at Chicago, of one Rose, before then an entire stranger, who introduced Stanton, by his assumed name, to the defendants, who thereupon, purchased of him two thousand sides of the leather, and made payment therefor.
The plaintiffs having traced their leather into the hands of the defendants, demanded a return of it, and on refusal to surrender it, they brought this suit.
The defendants set up no other title to the leather, than this purchase, under the circumstances, thus briefly detailed, and the question arises whether such a purchase divests the true owners of their title to the property.
The defendants contend that they bought the property in good faith, in the regular course of business, paying a full price in open market, and with no knowledge of a want of title in their vendor, in whose possession the property was, when purchased by them.
They insist that this is one of a large class of cases, where, though the title of the vendors may have been obtained by fraudulent means, yet he can make a valid sale of the goods to a bona fide purchaser for a valuable consideration, so as to deprive the original owner of his power to reclaim them. Numerous cases are referred to in support of this view, into which we have looked, and find, for the most part, they are cases where an actual sale of the goods had been made, and consummated by a delivery, and in some cases accompanied by a bill of the goods.
The case of Root v. French, 13 Wend., 572, is singled out by the defendants, as announcing the principle on which this case stands, and it is, that an innocent third person finding a vendor, who sells to him, in possession of the property sold, without notice of any fraud affecting such possession, showing that it is otherwise than a rightful and lawful possession, may obtain a superior title to that of the lawful owners who enabled the person in possession to deal with it as his own, by clothing him with the evidence of that ownership, without which the innocent purchaser would not have become a purchaser.
That was a case of an absolute sale and delivery of the goods to the fraudulent purchaser, and his note taken at ninety days for the price. In three days thereafter the purchaser transferred these goods to the defendant, to indemnify him for responsibilities he had assumed as indorser and as a creditor to a large amount. The purchase was made on the eve of a bankruptcy. A demand was made on the transferee for the goods, and on refusal to deliver them up, replevin was brought. The case showed that the purchaser of the goods was hopelessly insolvent. The court say, as between the plaintiff and Jenkins, the purchaser, Jenkins, had no title to the property in question. It is a general rule that a person who has no title to property can convey none; but to this rule there are some exceptions. To create such exception, and to give a third person a better title and a superior equity to the true owner, such third person must have given value for the property, etc., and without notice of the fraud. Such innocent third person is a bona fide purchaser for a valuable consideration. In such a case, the vendor, who has been defrauded of his property, and the bona fide purchaser from the fraudulent vendee, are both innocent p...
To continue reading
Request your trial
-
Corn v. Skillern
... ... The sale was valid, and the money ... paid therefor became the property of Corn. Jetton v ... Tobey, 62 Ark. 84, 34 S.W. 531; Fawcett v ... Osborn, 32 Ill. 411 (cited in Jetton v ... Tobey as Fawcett v. Osborn, 32 ... Ill. 411); notes in Williams v. Merle, 25 ... Am. Dec. 610, ... ...
-
Rhone Poulenc Agro, S.A. v. Dekalb Genetics Corp.
...passes to the grantee named in the deed, then, of course, he can pass nothing on to an innocent subvendee."); Fawcett, Isham & Co. v. Osborn, Adams & Co., 32 Ill. 411, 425 (1863) ("The general rule of law, sanctioned by common sense, is, that no man can, by his sale, transfer to another the......
-
The National Bank of Commerce of Kansas City v. Morris
...exists. Benjamin on Sales [6 Ed.] p. 37; Tiedeman on Sales, sec. 317; Usher on Sales, sec. 37; 25 American Decisions, p. 609; Fawcett v. Osborn, 32 Ill. 411. (2) The effect and validity of a chattel mortgage determined by the laws of the situs of the chattel and of the residence of the mort......
-
Waters v. Cox
...v. Curyea, 40 Ill. 320; Bremer v. Peabody, 3 Kernan, 121; Daws v. Perrin, 16 N. Y. 325; Newsom v. Thornton, 6 East. 17; Fawcett et al. v. Osborne et al. 32 Ill. 411. Messrs. CRATTY BROS., for appellee; that the contract of sale with delivery of possession to the vendee, the title to remain ......