Mayer v. Springer

• Court: Illinois Supreme Court
• Writing for the Court: CARTWRIGHT
• Citation: Mayer v. Springer, 192 Ill. 270, 61 N.E. 348 (Ill. 1901)
• Decision Date: 24 October 1901
• Parties: MAYER v. SPRINGER.

192 Ill. 270

61 N.E. 348

MAYER

v.SPRINGER.

Supreme Court of Illinois.

Oct. 24, 1901.

Appeal from appellate court, Fourth district.

Action by A. Mayer against J. W. Springer. From a judgment of the appellate court (95 Ill. App. 173) affirming the judgment of the circuit court, in favor of defendant, plaintiff appeals. Reversed.

Parsons & Hanlon, J. E. Bartley, and Ross Graham, for appellant.

Parish & Parish, for appellee.

CARTWRIGHT, J.

Appellee, J. W. Springer, owned and operated the Riverside Mills, in the city of Shawneetown. Appellant, A. Mayer, had wheat, which he was not ready to sell at the time, and which appellee wanted to buy whenever appellant was ready to sell it. They made an agreement by which appellee was to store the wheat in his mill without charge, and was to have the option to buy it when appellant was ready to sell, provided he would pay as much as any one else. Under this agreement appellant stored wheat in the mill, taking the following receipt: ‘Shawneetown, Ill., Aug. 19, 1898. Received of A. Mayer (2,142) twenty-one hundred forty-two bushels and twenty-five pounds of No. 2 red wheat, to be held in storage for him (A. Mayer) in the Riverside Mills. J. W. Springer & Co., by J. M. White.’ Afterwards appellant delivered other wheat for storage under the same agreement, taking the following receipt: ‘Shawneetown, Ill., Sept. 24, 1898. Received of Mr. A. Mayer the following lots of wheat: 789 46/60 bushels of wheat testing 56 lbs., 164 46/60 bushels of wheat testing 55 1/2 lbs., 151 bushels of wheat testing 50 1/2 lbs. J. W. Springer & Co. W.’ In January, 1899, appellant sold to appellee 1,000 bushels of the wheat so stored at 70 cents per bushel. In the summer of 1899 appellant made a further deposit for storage in the mill of 498 bushels and 12 pounds, under the same agreement, but took no receipt therefor. In July, 1899, he sold to appellee 380 bushels of the wheat stored in 1899 at 65 cents per bushel. The whole amount of wheat stored was 3,745 bushels and 44 pounds. The total amount sold to appellee was 1,380 bushels, leaving in store 2,365 bushels and 44 pounds. In August, 1899, the mill, with its contents, was burned. Appellant brought this suit to recover for the wheat that had not been sold to appellee before the fire. The declaration contained four counts. The first was the consolidated common count. The second averred the delivery of the wheat under an agreement by which it was to be safely kept until demanded, and upon demand to be either redelivered to plaintiff or paid for at the market price; and alleged that defendant disposed of a large part of the wheat, and caused the remainder to be mixed with other wheat, without the consent of plaintiff, and thereby converted said wheat to his own use, and, although requested to pay for said wheat or redeliver the same, neglected and refused so to do. The third averred the delivery of the wheat to be securely kept and redelivered to the plaintiff, and charged negligence, generally, in the care of the same, whereby it was lost to the plaintiff. The fourth averred that in consideration of the care and custody of the property and an option given by the plaintiff to the defendant to purchase the same at such time as the plaintiff should desire to sell, the defendant undertook to take due and proper care of the same, and took so little care that the property was lost. The defendant pleaded the general issue, and upon a trial there was a verdict in his favor, and judgment on the verdict, which, on appeal, was affirmed by the appellate court.

At the trial the facts already stated were proved, and were not in dispute. The defense made was that under the agreement the defendant could grind the wheat, or use and dispose of it, and return to the plaintiff an equal quantity of other wheat of the same grade; that the wheat was stored at plaintiff's risk; and that at the time the mill was burned defendant had an amount of wheat in the mill in store, subject to plaintiff's order, equal in quantity and quality to what was remaining of plaintiff's wheat under the contract of storage. It is argued that oral evidence to sustain this defense was not admissible under the general issue, but that a special plea was required, or the general issue, with notice of the defense. There was no objection to the evidence complained of, and there is no assignment of error that the court erred in the admission of evidence. Argument on that subject, not being based on an assignment of error, will not be considered. Defendant claimed that the wheat was in store at the plaintiff's risk, and that he was not guilty of negligence, or responsible for any loss by the fire. In November, 1898, plaintiff was notified that there was weevil in the wheat deposited in that year. The evidence for defendant was that plaintiff then wanted to know if defendant could reclaim the wheat, or do something with it, and said for defendant to go ahead, and do the best he could with the wheat; and that the effect of the agreement was that defendant might grind the wheat, or use it, and return an equal amount of other wheat of the same grade to the plaintiff. Plaintiff denied any agreement that defendant might deliver him other wheat, and an agent of the plaintiff testified that when there was notice that weevil was in the wheat he went to the mill, and found that the wheat was not there, and was told that it had been ground, and...