Miller v. Kirby

• Decision Date: 30 September 1874
• Citation: 1874 WL 9116,74 Ill. 242
• Parties: CYRUS F. MILLER et al.v.RICHARD D. KIRBY.
• Court: Illinois Supreme Court

74 Ill. 242

1874 WL 9116 (Ill.)

CYRUS F. MILLER et al.

v.RICHARD D. KIRBY.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

This was an action of trespass, by Richard D. Kirby against Cyrus F. Miller, A. Swick, Henry Sears, E. B. Sears, and E. W. Beattie. The trespass was the levy of an execution issued upon a judgment in favor of the two Sears and Beattie, partners under the name of Henry Sears & Co., and against Charles G. French, a former owner of a part of the goods. Swick was the constable who made the levy, and Miller the attorney of Henry Sears & Co., who directed the levy. The material facts of the case appear in the opinion.

Messrs. MILLER, WILLIAMSON & MILLER, and Mr. F. SACKETT, for the appellants.

Mr. G. A. FOLLANSBEE, for the appellee. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

About the 1st of June, 1873, Charles G. French, being engaged in the sale of jewelry, etc., in Chicago, sold his stock in trade to appellee for $7,500, for which appellee paid in cash, at the time, $1,500, and gave his twelve promissory notes for $500 each, payable, the first one month thereafter, and the others one for each consecutive month following, until the last note should become due, for the residue. To secure the payment of the notes he also executed, at the same time, a deed of trust to one Nichols. Appellee took possession of the stock, in conjunction with Nichols, the trustee, immediately after his purchase, and proceeded to sell the same as customers enabled him to do so, and also made some additional purchases to replenish and enlarge the stock.

On the 5th of July, 1873, the appellants, Henry Sears, Edmund B. Sears, and Edward W. Beattie, recovered a judgment before a justice of the peace of Cook county, against Charles G. French, for $76.00, and costs of suit taxed at $5.95. Execution was issued on this judgment on the 11th of July, 1873, and placed in the hands of appellant Swick, a constable, to execute. He, in company with appellant Miller, an attorney at law, acting for the plaintiffs in the execution, thereupon went to the place of business of appellee, and levied the execution upon certain watches and “watch movements,” which were included in the sale by French to appellee, and also upon one watch which had been left with appellee for repairs, and one watch which belonged to Nichols, for both of which, however, appellee seems to have been under obligation to, and did, account to their respective owners.

The action is trespass de bonis asportatis, and the appellants justify under the judgment and execution.

The jury, by their verdict, found the appellants guilty and assessed appellee's damages at $514.44. The court thereupon gave notice that he would grant a new trial unless appellee would remit all but $200 of the amount found by the verdict, which being done, judgment was then given for that amount.

Several errors have been assigned, which we will notice, in the order of their precedence on the record.

It is objected that appellee does not show sufficient possession, or right to possession, to enable him to maintain the action; that the possession is shown to have been in Nichols, under the deed of trust, and he alone, if any one, can bring trespass, under the proof.

The general doctrine is well settled, as claimed by counsel for appellants, that the plaintiff, in such cases, must show that, at the time when the injury was committed, he had an actual or constructive possession of the property, and also a general or qualified title therein; but it is equally well settled that actual possession, though without the consent, or even adverse to the real owner, will be sufficient as against a wrong-doer, or one who can show no better title.

Assuming the sale by French to appellee to have been valid, the question raised upon which we shall pass for the present, appellee, after executing the deed of trust, still retained an equitable interest in the property, which it was important to him should be protected. That he might do so, it is expressly provided in the deed: “It is understood and agreed by and between said parties, that said Kirby (appellee) is to have, during the time said Nichols shall be trustee as aforesaid, full right, power and authority to carry on the business of said store in his own name; to have his signs out as such owner; to sell the goods therein contained, and in said schedule mentioned; to receive the proceeds of sales of said goods, and to have the management of said business in the same manner as a retail jewelry business is generally carried on.” It surely cannot be insisted that this provision is inconsistent with the actual possession of the property by appellee. It is plainly impossible that it could be practically carried out without an actual possession. Whatever possession, then, it was designed Nichols should have, must have been simply constructive, the sole purpose of his appointment, and the extent of the authority vested in him, being to see that appellee faithfully carried on his business and applied the proceeds of his sales to the payment...