Kussell v. Jacob Jzevor.

• Decision Date: 31 October 1878
• Citation: 2 Ill.App. 243,2 Bradw. 243
• Parties: PHILIP KUSSELL ET AL.v.JACOB JZEVOR.
• Court: United States Appellate Court of Illinois

2 Ill.App. 243

2 Bradw. 243

PHILIP KUSSELL ET AL.

v.JACOB JZEVOR.

Appellate Court of Illinois, First District.

October Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Mr. WILLIAM H. KING, for appellants; that admitting the sale to appellee was bona fide, the right to the goods depends upon the fact as to which first obtained actual possession, appellants or appellee, cited Burnell v. Robertson, 5 Gilm. 282; Ketchum v. Watson, 24 Ill. 591.

The record fails to disclose any wantonness or aggravated conduct on the part of appellants, and punitive damages should not have been allowed: Conrad v. Pacific Ins. Co. 6 Pet. 262; Beveridge v. Rawson, 51 Ill. 504; City of Chicago v. Martin, 49 Ill. 241; Pierce v. Millay, 44 Ill. 189; Kennedy v. North Mo. R. R. Co. 36 Mo. 351.

There was no evidence to justify the court in instructing the jury that they might find exemplary damages: Waldron v. Marcier, 82 Ill. 550; Wenger v. Calder, 78 Ill. 275; Engle v. Jones, 51 Mo. 316; Franz v. Hilterbrand, 45 Mo. 121; Rose v. Story, 1 Pa. St. 190; Brown v. Allen, 35 Iowa, 306; Bates v. Clark, 5 Otto, 204.

The damages allowed were grossly excessive: Sadler v. Bean, 38 Iowa, 684; Cutler v. Smith, 57 Ill. 252; Tripp v. Gronner, 60 Ill. 474; Becker v. Dupree, 75 Ill. 167.

Messrs. BRANDT & HOFFMAN, for appellee; that the damages are not excessive, cited Field on Damages, 56; St. L. V. & S. H. R. R. v. Capps, 67 Ill. 607; Lawrence v. Hagerman, 56 Ill. 68; Jasper v. Purnell, 67 Ill. 358; Johnson v. Camp, 51 Ill. 219; Best v. Allen, 30 Ill. 30: Hawk v. Ridgway, 33 Ill. 473; Farwell v. Warren, 51 Ill. 467; Coffin v. Coffin, 4 Mass. 41; McNamara v. King, 2 Gilm. 432; Ross v. Innis, 35 Ill. 488.

PLEASANTS, J.

The facts proved in this case, so far as need be stated, are these: For some months prior and up to May 4, 1876, one Joseph Weseley had been keeping a small grocery at No. 17 Crittenden street, in the city of Chicago, and was then indebted to Kussel Bros., two of the appellants, who were wholesale dealers, on account for goods, in the sum of $105.39. On that day his stock was levied on under an execution in favor of a third party, and his store locked up and put in charge of a custodian. On the morning of the 9th, at the office of the justice who had issued the execution, he made a bill of sale of “the stock, fixtures and property contained in the store,” for $275, to the appellee, and the latter, with his consent, then and there paid the price to the plaintiff's attorney, who retained the amount of the judgment, and paid over the residue to Weseley. Appellee immediately presented his bill of sale, with an order for possession to the custodian, who thereupon unlocked the door and delivered to him the key. He and his wife went in, sold a pound of sugar to a customer, and then, for some unexplained reason, disappeared, leaving no one in the store except a lad who had previously been there in the employ of Weseley. On the same morning, and shortly before the execution of the bill of sale, the Kussel Brothers sued out from another justice a writ of attachment against the property of Weseley, which was delivered to constable Klyn, the other appellant, to execute. Christian Kussel accompanied him, to point out the goods. Finding the door locked, they crossed the street to a saloon in search of Weseley, but did not see him. Observing a few minutes afterward that the store was open, they returned to it, and being informed by the custodian, whom they met near the door, that “he was through with it,” went in, and seeing no one there but the lad before mentioned, who was recognized by Kussel as the clerk or employee of Weseley, at once proceeded to levy upon and load up the goods. While so engaged appellee's wife came in, followed by her husband, who claimed the property and exhibited his bill of sale; but Kussel and the constable disregarded it, and went on with the levy. The appellee being a Pole, and unable to speak or understand English readily, went out, and soon returned with one Labuy, a fellow countryman, who also informed them of appellee's claim that he had bought and paid for the property, and on his behalf forbade their taking it. Notwithstanding this, they still went on, and removed to the store of Kussel Brothers two wagon loads of goods, worth from $140 to $168. Labuy accompanied them, and saw that everything taken was properly counted or weighed and minuted. On the next day appellee sued out a writ of replevin, and Labuy, with the officer having it, demanded the goods of appellants, who replied: “Look the store through, and if you can find them, why, take them.” They searched, but never found or recovered them. In due time Kussel Bros. obtained a judgment for the amount of their claim in the attachment suit against Weseley, and execution thereon was returned satisfied. At the time of that trial the goods were again demanded of appellants, who asked a little time to consult their attorney, and shortly atterwards refused to surrender them. Thereupon the replevin suit was dismissed, and this, in trespass, brought.

Upon this state of facts the court below gave to the jury, among others, the following instruction:

“If the jury believe from the evidence that the defendants committed the trespasses alleged in the declaration, or some of them, and thereby injured and damaged the plaintiff, then the jury should find the defendants guilty, and assess the plaintiff's damages; and if the jury shall believe from the evidence that the defendants willfully, wantonly, and maliciously committed such trespasses as the jury shall believe from the evidence they did commit, if any, then the jury are instructed as matter of law that the damages are not necessarily limited by any damages which the jury may believe from the evidence that the plaintiff has actually sustained in the premises, but the jury may, in such case, give a further sum as smart money, or a punishment to the defendants, and such as under all the circumstances the jury shall deem just.”

A verdict of guilty...