Loewenthal v. Streng

• Citation: 1878 WL 10110,90 Ill. 74
• Parties: BERTHOLD LOEWENTHALv.CHRISTIAN STRENG.
• Decision Date: 30 September 1878
• Court: Supreme Court of Illinois

90 Ill. 74

1878 WL 10110 (Ill.)

BERTHOLD LOEWENTHAL

v.CHRISTIAN STRENG.

Supreme Court of Illinois.

September Term, 1878.

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

Messrs. ROSENTHAL & PENCE, for the appellant.

Messrs. BARNUM & NISSEN, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

Appellee brought an action on the case against appellant for malicious prosecution. The case was tried by the court and a jury, and a verdict was rendered against defendant for $10,000. A motion for a new trial was entered by defendant and overruled by the court, and, thereupon, the plaintiff entered a remittitur of $4000, and the court rendered a judgment for $6000, and defendant appeals.

Appellee was indebted to the bank of which appellant was president, in the sum of $5000, which was secured by a trust deed on real estate; also, in the further sum, by his note, unsecured, for $1200. When this last note matured, a judgment was entered, by confession, for the amount thereof. Before that time, and before the maturity of the note, appellee gave a bill of sale of his personal property to a third person, but received no consideration, nor does it appear he received any notes or security for the price. Appellant insists the facts all show this sale was fraudulent, but this appellee denies, and claims it was with a view of forming a partnership with the purchaser. To say the least, the transaction was unusual if it was bona fide. At any rate, the purchaser surrendered the property to appellee through the assistance of his attorneys.

Afterwards, appellant had an execution issued on the bank judgment levied on this property by the sheriff. He, after advertising, sold it, and appellant, under some arrangement with appellee (but they differ as to its terms), purchased it. He then put Hirsch, and Lœwenthal, his cousin, into its possession, giving them the keys, to sell it, as his agents, assisted by appellee, as he claims; but the latter insists they were to assist him in selling it. It may be justly inferred that the arrangement was, that the property should be sold, the execution costs, interest, and the expenses attending the sale, should be paid, and if any balance remained, appellee was to have it. Sales were made and credits indorsed on the execution, appellee claiming to the full amount, appellant insisting that there remains over $300 still due. On this question the evidence is quite inharmonious, if not irreconcilable.

It appears that appellee, without the knowledge or consent of appellant, went to the cellar, removed a partition on...