Lonergan v. Stewart

• Decision Date: 30 September 1870
• Citation: 55 Ill. 44,1870 WL 6376
• Parties: JAMES LONERGANv.MALCOLM N. M. STEWART.
• Court: Illinois Supreme Court

55 Ill. 44

1870 WL 6376 (Ill.)

JAMES LONERGAN

v.MALCOLM N. M. STEWART.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

The opinion states the case.

Messrs. VAN ARMAN & VALLETTE, for the appellant.

Messrs. RANDALL, FULLER & MUNN, for the appellee.

Mr. JUSTICE BREESEdelivered the opinion of the Court:

This was an action of trover, originally commenced before a justice of the peace of Will county, and a verdict and judgment for the plaintiff.On appeal by the defendant to the circuit court, and on trial there by jury, there was a verdict for the defendant, and judgment rendered thereon.

To reverse this judgment the plaintiff appeals, and assigns several errors, all of which may fairly be embraced in one, and that is, the exclusion of the evidence offered by appellant.

To determine the propriety of this ruling of the court, a brief statement of the facts is necessary.

It appears that, in the month of January, 1867, one Barnabas Bradt was the owner and occupier of a grain warehouse at Channahon, in Will county, in which month appellant delivered to Bradt, at his warehouse, five hundred and ninety-one bushels of corn in the ear, taking from him this receipt:

CHANNAHON, January 29, 1867.

Received in store from wagons 591 bushels ears of corn, from James Lonergan, subject to the order of himself hereon on payment of charges.Storage free-- risk of fire and heating excepted--591 bushels, -- lbs.

B. BRADT, per O. J. C.

Sometime in June following, Bradt formally sold and delivered to appellee the warehouse and its contents, the corn delivered by the plaintiff being therein at the time.

After this sale, appellant presented this receipt to appellee, and demanded the corn, offering to pay all charges, but appellee refused to recognize the receipt, and denied any liability under it, and claimed the warehouse and its contents as his own by virtue of his purchase from Bradt.Hence this suit.It is very evident the various rulings of the court, to which exceptions were taken by appellant, were based upon the hypothesis that the transaction in regard to this corn was a sale and not a bailment.If that theory is correct, then the rulings were proper.Was it a sale or a bailment?What is the testimony?

The plaintiff testified that he put five hundred and ninety-one bushels of ears of corn in Bradt's warehouse at Channahon; he put it in store, supposing he could sell it when he wished; that he had never sold, nor in any way parted with his property in the corn, except to store it subject to his order; Bradt bursted up before he was ready to sell; Stewart, the defendant, succeeded Bradt in the possession of the warehouse property; Bradt sold out to Stewart; he presented his receipt and made a demand of Stewart for the corn after he came into possession of the warehouse property, in August or September, and before commencing suit; Stewart refused to pay him or to deliver the corn; understood Stewart shelled and shipped the corn to Chicago; highest price of corn from the sixth of June to September, the time of commencing the suit, was ninety cents; never gave the defendant, nor anybody else, permission to sell or dispose of his corn; it was disposed of without his permission.

On his cross-examination, a very different phase is put upon the transaction.He, on such examination, testified that he got twenty dollars of Bradt before the transfer to defendant; got a barrel of salt from him at another time; about the twelfth of August, 1867, he took out an attachment before Esquire Young against Bradt for the same corn; did not have the writ served, and dropped it.The corn was left subject to his order; was put in cribs with other corn; others put corn in the same cribs; at the time he put in his corn expected to get whatever corn would be worth the day he was ready to sell, and expected to sell it to Bradt, and have his money any day he called and demanded it, at the price of that day; did not expect to get the corn again, but expected the money for it; don't know what became of his corn; don't know who shipped it off; don't know whether defendant took possession of his corn or not; he made affidavit before Esquire Young, in Wilmington, that Barnabas Bradt was indebted to him in the sum of $438 for this same corn that he has been testifying about, and the affidavit was made to get an attachment against Bradt's property; they, Bradt and Colby, did not agree to pay the money on any given day, but at any time when he, witness, fixed the price; he was to get the market price of the day he should fix; there was no understanding what was to be done in case they failed to pay the money when he fixed the day.

We have been careful to give a literal copy of the plaintiff's testimony as we find it in the record, and we think it impossible to read it without coming to the conclusion that the corn was sold to Bradt, the seller choosing the day on which he would demand the price.How, otherwise, is it possible to account for the payment by Bradt of twenty dollars before Bradt sold to defendant, and a barrel of salt at another time; and, above all, how could plaintiff, in August, 1867, make an affidavit that Bradt was his debtor for this corn, and obtain an attachment on his property?It is impossible to consider the transaction in any other light than as a sale.The corn was delivered in January, 1867.Bradt sold out the whole concern to defendant the seventh of June following.On the twelfth of August thereafter, plaintiff makes the affidavit of indebtedness.

Appellant's counsel seem to think this affidavit for an attachment “makes no figure in this case;” that he might have commenced such a suit under mistake of his rights or of Bradt's responsibility, and if he chose to discontinue the suit, it would be as though he had never commenced it.The authority he cites-- 1 Ch. Pl. 252--is not disputed.A party has an election of actions, and may discontinue one without prejudice, but that is not the question.This plaintiff made solemn oath that he had sold this corn to Bradt, and that Bradt owed him therefor...