Lenz v. Harrison

• Decision Date: 29 November 1893
• Citation: 148 Ill. 598,36 N.E. 567
• Parties: LENZ, Sheriff, v. HARRISON.
• Court: Illinois Supreme Court

148 Ill. 598

36 N.E. 567

LENZ, Sheriff,

v.HARRISON.¹

Supreme Court of Illinois.

Nov. 29, 1893.²

Appeal from appellate court, second district.

Action of trespass brought by William Harrison against Louis A. Lenz, sheriff of Marshall county. Defendant obtained judgment, which was reversed by the appellate court. Defendant appeals. Affirmed.

Fred. S. Potter, for appellant.

John E. Pollock and Edward Barry, for appellee.

CRAIG, J.

This was an action of trespass brought by William Harrison against Louis A. Lenz, sheriff of Marshall county, to recover the value of a certain number of wagons, which had been levied upon and sold by the defendant under an execution in favor of Martin & Co., issued August 12, 1892, on a judgment rendered in the circuit court of Marshall county against T. L. Harrington. In the circuit court the parties by agreement waived a jury, and the cause was heard by the court, and upon the evidence introduced the court entered judgment in favor of the defendant. The plaintiff appealed to the appellate court, where the judgment of the circuit court was reversed, and as the amount of the recovery was agreed upon, providing plaintiff was entitled to recover at all, the court entered judgment in favor of the plaintiff for $963. The appellate court also made a finding of facts, and incorporated the facts as found in its final judgment as follows: ‘Finding of facts to be incorporated in the final judgment, as being different from those found by the court below, and upon which the judgment of this court is based, viz.: And this court finds that the defendant in the execution, T. L. Harrington, held the wagons and property in question, the basis of the judgment herein, as the agent and factor of appellant, and held the same for sale as such, and that he, the said Harrington, was not at the time of the levy, or at any other time before or after, the owner of the said property, but, on the contrary, the appellant was at the time of the said levy and sale a bona fide owner of the said property, and had the right to the possession thereof as against the said execution creditors, Martin & Co., and as against the appellee, the said sheriff, and as against any other persons whomsoever. The above finding is based solely upon the written contract between the said appellant and the said T. L. Harrington appearing in evidence, dated March 4th, 1892, and is the result of the legal construction given to the same by this court; and it is further found that there is no evidence tending to establish a sale of the said goods by said appellant to said Harrington; and we further find that the amount of the judgment is fixed by the evidence and agreement of the parties thereto appearing in the record.’

Under section 88 of the practice act, where the appellate court finds the facts different from the circuit court, and incorporates and recites the facts as found in its final judgment, the judgment of the appellate court is final and conclusive as to all matters of fact in controversy. So far, therefore, as the facts are concerned, they are not a subject of review here, and the only question for our consideration is, conceding the facts to be as found, was the law properly applied to the facts? It will, however, be observed that the finding of facts by the appellate court is predicated principally on the construction of the written contract executed by Harrison and Harrington, under which Harrington secured the wagons from Harrison, and in disposing of the case it will be necessary to consider the terms and conditions of that contract.

The plaintiff, as appears from the record, resided at Grand Rapids, Mich., where he was engaged in manufacturing wagons. Harrington resided at Henry, this state, and was engaged in the sale of wagons. On the 4th day of March, 1892, Harrison, as party of the first part, and Harrington, as party of the second part, entered into a written contract, which provided: ‘First. The party of the first part has appointed, and does appoint, the party of the second part to act as his agent for the sale of his wagons in Henry, Ill. Second. The party of the second part hereby undertakes and accepts the said agency, and agrees to the following conditions,viz.: Will pay freight charges, local and general taxes on the wagons; have them properly housed and under cover, and will make good any loss or damage by fire; will pay all expenses whatever; will sell to no person or firm on credit whatever, except such as is of undoubted solvency, and financially responsible, and on all time sales, which shall not exceed twelve months, will takes notes on blanks as inclosed, with interest at the rate of seven per cent. per annum from the date of sale; will indorse all notes, guarantying their prompt payment when and where due; will so conduct the business that the time of final payment in Grand...