Hanchett v. Kimbard
| Decision Date | 12 June 1886 |
| Citation | 7 N.E. 491,118 Ill. 121 |
| Parties | HANCHETT, Sheriff, etc., v. KIMBARD. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district.
Hutchinson & Partridge
and Shuman & Defrees, for appellants.
Flower, Remy & Gregory, for appellees.
This was an action of debt brought by the sheriff of Cook county, for the use of Kelley, Maus & Co., on a replevin-bond executed by appellees to the sheriff in an action of replevin brought by S. D. Kimbark, against Kelley, Maus & Co., to recover certain goods which had been purchased by John Morrison from Kimbark, through, as is alleged, such fraudulent representations, as to the financial standing of said Morrison, as to authorize the vendor to rescind the sale and recover the goods. After the goods had been recovered under the writ, Kimbark dismissed his action of replevin, and this suit was brought by the sheriff on the bond to recover the value of the goods. As a defense to the action, Kimbark set up that the purchase of the goods by John Morrison was fraudulent; that the sale from Morrison to Kelley, Maus & Co. was fraudulent, for the purpose of covering up the property for the benefit of Morrison; and that the circumstances under which Morrison sold to Kelley, Maus & Co. were sufficient to charge them with the fraudulent character of his purchase from Kimbark. On a trial of the cause before a jury the issue presented was found in favor of Kimbark, and the plaintiffs recovered only nominal damages. On appeal the judgment was affirmed in the appellate court, and the plaintiff in the action, for the purpose of reviewing the decision of the appellate court, has prosecuted an appeal to this court. When the case was presented at a former term, upon the argument presented we entered an order reversing the judgment, and remanding the cause for another trial. Under the rules of the court, Kimbark presented a petition for a rehearing, which was considered, and a rehearing ordered. The cause has again been argued, and upon further consideration of the case, as presented on the reargument, we have arrived at a different conclusion from that reached when the case was first presented.
On order to determine properly whether the decision of the circuit court on the admission of evidence, and the giving and refusing instructions, which was approved in the appellate court, was correct or incorrect, it seems proper to allude to some of the leading facts in the case, as established by the evidence. In the month of January, 1883, John Morrison, who was engaged in the manufacture of carriages in Chicago, purchased, on credit, of Kimbark, a wholesale dealer in iron, in Chicago, a bill of goods amounting to about $2,500. The goods were delivered in different quantities, and at different dates, from the time of purchase, during January, February, and the first part of March. At the time of the purchase, Kimbark required a statement from Morrison as to his financial condition, which was given, showing that his liabilities did not exceed $300, and that he was worth some $20,000, consisting of a farm in Michigan and property in Chicago. From the time the bill of goods was ordered he continued business in Chicago until April 13, 1883, when, claiming that his safe had been robbed of some $6,000 in currency, he confessed a judgment in favor of William Morrison, a brother, for some $2,500. Execution was issued on this judgment, and levied on Morrison's goods. He then was taking steps to make an assignment, when he was induced by Kelley, Maus & Co., to whom he was indebted in the sum of $2,500, to make a sale of his goods to them. They at the same time purchased the judgment which had been confessed in favor of William Morrison, and assumed the payment of $400 or $500 due Morrison's workmen. When the terms of the purchase were agreed upon, Kelley, Maus & Co. took a bill of sale, and went into the possession of the goods, amounting in value to between $6,000 and $7,000. They knew, at this time, that Morrison was in failing circumstances, and that he did not have sufficient property to pay his debts; that a part of the goods contained in the bill of sale had been purchased from Kimbark; that Morrison was attempting to defraud his creditors. There was also evidence introduced tending to prove that, under the arrangement made with Kelley, Maus & Co., Morrison was to have whatever overplus should remain on sale of the goods after the firm debt, and such advances as they made, should be paid.
On the trial, Charles B. Kelley, one of the plaintiffs, was called as a witness on behalf of the plaintiffs for the purpose of proving the value of the property, the expenses incurred in the action of replevin, and that the property was not returned; and his examination in chief was confined to these subjects. On the cross-examination, the court permitted the defendant to interrogate the witness upon other subjects, and this is relied upon as error. There is no doubt in regard to the general rule on this subject. It is well established, by a uniform current of authority, that the cross-examination of a witness is restricted to such matters and things as the witness may have been examined upon in his direct examination. Stafford v. Fargo, 35 Ill. 486;Hurlbut v. Meeker, 104 Ill. 542. But, while we fully concede the general rule on the subject, cases may arise where a strict observance of the rule will not always be required. More latitude is always allowed in cross-examination, where the witness is one of the parties in interest, or where the person is an unwilling witness, than in the case of an ordinary witness; and we think it safe to say that a circuit court may, in its discretion, where a party in interest is a witness, allow the cross-examination to take a wider range; and, where the cross-examination has not been confined strictly to the examination in chief, it will not be held error, unless it appears that there has been an abuse of the exercise of a sound legal discretion. Rea v. Missouri, 17 Wall. 533. Here much latitude was allowed on the cross-examination of the witness; but, so far as appears, no injury whatever was done to the plaintiffs, and we do not think that the judgment ought to be reversed unless it was apparent that the plaintiff had been injured by the ruling of the court.
It is also claimed that the court erred in allowing the defendant to prove by William Huston the declarations of William Morrison, which were made four days before the sale of the goods, to the effect that John Morrison at that time owed him nothing. William Morrison was not a party to the suit, and it is claimed that his declarations were mere hearsay. It will, however, be remembered that William Morrison, at the time the admissions were made, held a past-due note against John Morrison, upon which a judgment was...
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