Killian v. Hoffman

• Decision Date: 31 March 1880
• Citation: 6 Bradw. 200,6 Ill.App. 200
• Parties: JUSTUS KILLIAN, Receiver, etc.,v.JOHN HOFFMAN.
• Court: United States Appellate Court of Illinois

6 Ill.App. 200

6 Bradw. 200

JUSTUS KILLIAN, Receiver, etc.,

v.JOHN HOFFMAN.

Appellate Court of Illinois, First District.

March Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. THOMAS A. MORAN, Judge, presiding. Opinion filed March 29, 1880.

Messrs. WOODBRIDGE, BLANKE & WOODBRIDGE, for appellant; as to the right of the bank to sell the stock upon non-payment of the note, cited Loomis v. Stave, 72 Ill. 623; Mowry v. Wood, 12 Wis. 413; Tyler on Pawns, 601; Story on Bailment, § 317.

If the defendant elects to avoid the sale, the stock remains as security for the debt; there can be no set-off: Stokes v. Frazier, 72 Ill. 428; Middlesex Bank v. Minot, 4 Met. 325; Bryan v. Baldwin, 7 Lans. 174.

Mr. A. W. GREEN, for appellee; that where substantial justice has been done, a judgment will not be reversed because of error in an instruction that did not affect the verdict, cited Beseler v. Stephani, 71 Ill. 400.

Where the evidence is conflicting, the verdict will not be disturbed: Hubbard v. Rankin, 71 Ill. 129; Plummer v. Rigdon, 78 Ill. 222.

Plaintiff cannot assign for error an instruction given at his own request: O'Neill v. Orr, 4 Scam. 1; Miller v. Balthasser, 78 Ill. 202.

WILSON, J.

This was an action of assumpsit, brought by appellant against appellee, John Hoffman, on a promissory note for $1000, executed by the latter, dated February 7, 1872, and payable to the Germania Bank, three months after date, with interest at ten per cent. Attached to the note was an instrument in writing executed by Hoffman, reciting in substance that he had deposited with the bank as collateral security to the note, $1000 of the stock of the bank, and authorizing the bank, or its agents, to sell the same if default should be made in the payment of the note at maturity, at public or private sale, without giving any notice to Hoffman, and to apply so much of the proceeds thereof as might be necessary to pay the note.

There was a verdict and judgment in the court below for the defendant, and the plaintiff brings the case here by appeal, and assigns various errors, of which it is necessary to consider only one.

In December, 1872, about seven months subsequent to the maturity of the note, Hoffman having failed to pay the same, the stock, by direction of the president of the bank, was put up at auction in the bank, and was bid in by the cashier for the sum of $500, who subsequently transferred it to the bank. The $500 was endorsed as a credit on the note. The testimony tends to show that after the maturity of the note, and prior to the sale of the stock, Hoffman was notified that his note was overdue, and that payment was demanded. Hoffman denies that he ever received any notification or request for payment, and testifies on the contrary that the stock was not deposited as collateral under the written power of sale, but was left with the president of the bank the day after the execution of the note, under an independent parol agreement to the effect that at the maturity of the note the president should sell the stock and pay the note with the proceeds; and that sometime after the maturity of the note he was told by the president that the stock had been sold and the note was cancelled, and that he need give the matter no further attention. These statements are denied by the president and cashier, who testify that the stock was deposited with the bank at the time the note was given, as collateral to the note, pursuant to the written power of sale.

The sale of the stock and the purchase by the cashier with the money of the bank, as it seems to have been, and its subsequent transfer by the cashier to the bank, was substantially a sale to the bank, and was voidable at the election of Hoffman. The law does not permit a pledgee, trustee or other person standing in a fiduciary relation to property, or choses in action committed to his charge, to become a purchaser of the same at his own sale; and, as between the parties and their representatives, such sale will be set aside at the...