Greenebaum v. Wheeler

• Citation: 90 Ill. 296,1878 WL 10149
• Parties: HENRY G. GREENEBAUMv.CALVIN R. WHEELER.
• Decision Date: 30 September 1878
• Court: Supreme Court of Illinois

90 Ill. 296

1878 WL 10149 (Ill.)

HENRY G. GREENEBAUM

v.CALVIN R. WHEELER.

Supreme Court of Illinois.

September Term, 1878.

APPEAL from the Circuit Court of Livingston county; the Hon. N. J. PILLSBURY, Judge, presiding. Mr. A. E. HARDING, for the appellant.

Mr. L. E. PAYSON, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It appears that one Keach was indebted to a number of persons in May, 1876. This indebtedness was evidenced by his promissory notes, which, for the purpose of having secured, were assigned to appellant, and Keach gave to him a chattel mortgage on the property in litigation, together with other property, to secure the notes. Contemporaneously with the execution of the mortgage, Keach and appellant entered into an agreement, by which it was stipulated that Keach was to manufacture all material on hand, or that he might thereafter receive, into wagons and carriages, and sell the same with appellant's consent and approval, and pay the proceeds to appellant. It recites: “And whereas, said John C. Keach is desirous of receiving enough of the proceeds of such sales to run his shop, pay hands and support his family during the continuation of said mortgage; now, the said Greenebaum hereby agrees, upon the payment to him by said Keach, or upon the receipt of such proceeds, to pay and allow to said Keach the sum of not exceeding $300 per month out of the proceeds of such sales,--provided so much money is received from such sales per month. Such sales may be made on time, with the approval of said Greenebaum.”

Subsequently, Keach manufactured several wagons and sold them with appellant's consent, and the money was paid over to appellant and he applied it to the payment of the mortgage debt. Keach manufactured other wagons and sold them without the consent of appellant. The sales amounted to $1600, of which sum he retained $635. He made other sales and used the proceeds.

In carrying on the business, Keach lacked room to store the wagons and carriages manufactured from the mortgaged material, and he rented a part of a livery stable building about 100 rods from his shop, and he stored the carriages in controversy therein with others, and they remained there until the 13th day of November, 1876, when they were seized by appellee, a constable, on an execution issued on the 9th of that month. This portion of the livery stable was during all the time under the exclusive control of Keach. Appellant brought replevin for the property. By consent of parties, the case was tried by the court without a jury, and the court found the issues for defendant, and rendered judgment in his favor. Plaintiff appeals, and asks a reversal because the finding is against the evidence.

A chattel mortgage is regarded in law as a conditional sale of the property mortgaged, and, like other...