McKinnie v. Lane

• Decision Date: 10 December 1907
• Citation: McKinnie v. Lane, 230 Ill. 544, 82 N.E. 878 (Ill. 1907)
• Parties: McKINNIE et al. v. LANE.
• Court: Illinois Supreme Court

230 Ill. 544

82 N.E. 878

McKINNIE et al.

v.LANE.

Supreme Court of Illinois.

Oct. 23, 1907.

Rehearing Denied Dec. 10, 1907.

Appeal from Appellate Court, First District, on Appeal from Circuit Court.Cook County; R. S. Tuthill, Judge.

Action by Maurice T. Lane against Celestia G. McKinnie, in which defendant's executors were substituted on appeal.From a judgment of the Appellate Court affirming a judgment of the circuit court, defendants appeal.Affirmed.Currey & Allen, for appellants.

Wheeler, Silber & Isaacs, for appellee.

This suit was brought in the circuit court of Cook county by Maurice T. Lane against P. L. McKinnie to recover the sum of $1,700, which the former claimed to be due him as a balance on the purchase price of certain paintings sold to McKinnie.The declaration included only the common counts and was accompanied by a bill of particulars, as follows:

+-----------------------------------------+
                ¦To two pictures by Dupres and     ¦      ¦
                +----------------------------------+------¦
                ¦Mueller                    ¦      ¦$3,500¦
                +---------------------------+------+------¦
                ¦Credit                     ¦$1,700¦      ¦
                +---------------------------+------+------¦
                ¦Two pictures by Hammerstadt¦100   ¦      ¦
                +---------------------------+------+------¦
                ¦                           ¦      ¦1,800 ¦
                +---------------------------+------+------¦
                ¦Balance due                ¦      ¦$1,700¦
                +-----------------------------------------+
                

The balance of this amount was to be given in pictures at agreed prices.These pictures were demanded and refused and are now suing for the cash.

Maurice T. Lane,

By Wheeler, Silber & Isaacs, Attorneys.

On June 11, 1900, appellee sold to P. L. McKinnie two paintings, for which he claims he was to receive the sum of $3,500, $1,700 of which he admits was paid in money, and $1,800 he claims was to be paid in other pictures or in cash.Two pictures were received by appellee, as he claims, on the balance due, for which he gave McKinnie credit for $100.A demand for the other $1,700 worth of pictures was, according to appellee's contention, met with a refusal, whereupon suit was instituted September 11, 1903, by appellee to recover the remaining $1,700 in money.The cause was tried by jury in the circuit court, and a judgment rendered in favor of appellee for $1,700.Appeal was prosecuted to the Appellate Court for the First District, where the judgment was affirmed, and by further appeal the record is brought to this court for review.After the trial in the court below, and before the case was passed upon by the Appellate Court, McKinnie died, and his executors were substituted in the case and appear as appellants herein.

McKinnie testified that the purchase price of the paintings was $1,700, which he paid.He submitted a receipted bill showing the purchase price of $3,500, but he explains that by saying: ‘Mr. Lane called and got his checks for the total amount and brought me a bill made out at $3,500, which bill at $3,500 was an absolute and perfect fiction.I told Mr. Lane I did not care to have a bill made out in that manner, but he said to me: ‘Doctor, these pictures are worth more than this money; that it to say, you may be able to sell them some time for a larger sum than $1,700.And I will take from you a few paintings to sell on commission, and you can let some of them go on this, but this $1,800 on here is simply a booster.’I didn't fancy it, but he persuaded me it was all right.I never agreed to give Mr. Lane any other paintings than the two which he received for these paintings.He wanted me to forward them to him at Pittsburg, which I did, and they are the only paintings which I ever offered to Mr. Lane in the world.It was wholly, purely, absolutely, a fictitious and boosted price.'He also submitted in his own behalf a chack containing the words, ‘In full to date.’This check was dated June 11, 1900, and was cashed by Lane.

Lane testified that the purchase price of the two oil paintings was $3,500, to be paid $1,700 in money and $1,800 in specific pictures at agreed prices, or in cash; that he received $1,700 in money on delivery of the two paintings, also two pictures at $100; that when he called for the remaining pictures, representing the other $1,700, McKinnie refused to deliver them to him; that he called repeatedly to get them, ‘three, four, or five times at McKinnie's house,’ and ‘at least a dozen times at his office,’ but was never able to get the remaining pictures.Referring to the check which contained the words ‘in full to date,’he denied that these words were on the check when he received it.He explained the receipted bill by saying: ‘It was done as I do in thousands of cases dealing with rich people.I merely receipted the bill and called afterwards to get my pictures and could not get them.’

VICKERS, J.(after stating the facts as above).

The affirmance of the judgment by the Appellate Court settles all controverted questions of fact adversely to the contention of appellants.

It is contended by appellants that under the bill of particulars filed in this case recovery could not be had under the common counts.It is well-settled law that where there is an agreement to pay a certain sum in specified articles of personal property, at agreed prices, on a particular day, a failure to deliver the articles on the day fixed in the agreement converts the transaction into a money obligation.Borah v. Curry, 12 Ill. 66;Smith v. Dunlap, Id., 184;Bilderback v. Burlingame, 27 Ill. 338;Sleuter v. Wallbaum, 45 Ill. 43.In the case at bar there was no agreement fixing the date for the delivery of the pictures.In such case the law will presume delivery to be made on demand, or at least within a reasonable time.The record shows that after delivering the paintings to McKinnie and receiving the $1,700 in money and $100 in pictures appellee waited two years before bringing suit, making during that time repeated demands for the pictures.Appellee did all the law required of him, and when McKinnie refused to deliver the pictures as agreed he became liable to pay in money to appellee the sum which they had agreed the pictures would have represented had they been...