Mathews v. Cowan

• Decision Date: 30 September 1871
• Citation: Mathews v. Cowan, 59 Ill. 341, 1871 WL 8049 (Ill. 1871)
• Parties: PASCHAL P. MATHEWS et al.v.GEORGE COWAN et al.
• Court: Illinois Supreme Court

59 Ill. 341

1871 WL 8049 (Ill.)

PASCHAL P. MATHEWS et al.

v.GEORGE COWAN et al.

Supreme Court of Illinois.

September Term, 1871.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. E. S. WILLIAMS, Judge, presiding.

Messrs. DENT & BLACK, for appellants.

Messrs. HERVEY, ANTHONY & GALT, for appellees.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action on the case, with a count in trover, brought by the appellants against the appellees, for the conversion of three hundred barrels of flour delivered to the latter by the former, December 3d, 1870, as upon a sale for cash, but not paid for, the appellees having given therefor a check for $1473, on the Manufacturers' National Bank of Chicago, which check was dishonored, and by reason of such dishonor, and the insolvency of the appellees, the flour being lost to appellants.

The special count in the declaration alleges, in substance, that on the 3d day of December, 1870, the defendants, knowing themselves to be insolvent, but wrongfully intending to defraud the plaintiffs of the flour, fraudulently induced the plaintiffs to deliver the same to defendants, on the false and fraudulent pretense of the latter that they would pay therefor on delivery; in pursuance of which false and fraudulent pretense, defendants drew said check, payable on demand, and fraudulently and deceitfully delivered it to plaintiffs, as and for a good check, the defendants knowing that it was not good and would not be honored; that the check was dishonered, defendants having no funds in bank to meet it, and was and is worthless, whereby the flour became lost to plaintiffs, etc.

On the trial, evidence was introduced of the delivery of three hundred barrels of flour to the defendants, on December 3d, 1870, being Saturday; that the sale was for cash; that this delivery completed the delivery of five hundred barrels, sold by plaintiffs to defendants, November 23d, 1870, two hundred of which had been previously delivered and paid for; that on the delivery, Haven, one of the defendants, promised to give a check for the three hundred barrels on 'change, (lasting from eleven A. M. to one P. M.,) but that the check was delivered at plaintiff's office at 2:30 to 2:40 that afternoon; that it was dishonored, and on seeing Cowan, the other defendant, the next Monday morning, the latter said, Haven knew their checks were thrown out at one P. M. Saturday. Cowan and Haven were in partnership, and there was evidence that no assets could be found, and tending to show the insolvency of the defendants.

The following instruction was given for the defendants, and excepted to:

“The jury are instructed, that it is the intention of the defendant, Haven, when he bought this flour of the plaintiffs, on the 23d day of November, that is, whether he expected or intended to pay for the flour when he bought it, or whether he intended to cheat the plaintiffs out of it, which is to determine the defendant Haven's liability in this case, and not what transpired on the 3d day of December, when this check was given; and if the jury find, from the evidence, that Haven was a minor, and bought this flour in good faith, and in the usual course of business, and with a reasonable expectation of paying for the same, then the jury should find the defendant Haven not guilty; and in determining the question of intent, it is proper the jury should take into consideration what transpired subsequently in the said Haven's business, between the purchase of this flour and the day this check was given; and if the jury should find, from the evidence, that the defendant Haven bought a large amount of flour from other parties after he bought this of plaintiffs, and before this check was given, and that he paid for the same, and that he paid for two hundred barrels of this same purchase, for the balance of which this suit is brought, the jury have a right to take this into consideration in determining whether the defendant Haven expected and intended to pay for this flour when he bought it of the plaintiffs.”

The following instruction, without the italicized words in it, was asked for by the plaintiffs, and refused, which was excepted to, and thereupon the court, of its own motion, inserted in it the words italicized, and, as thus modified, gave it to the jury, to which the plaintiffs excepted:

“There are two issues presented in this case. One relates to the merits of the suit, and upon it the verdict should be for the plaintiffs, if the jury believe, from the evidence, that the plaintiffs were in possession of the three hundred barrels of flour in question, as of their own property, and that the defendants, Cowan & Haven, being insolvent and knowing themselves to be insolvent, with the...