Montgomery v. Brush

• Decision Date: 27 September 1887
• Citation: 13 N.E. 230,121 Ill. 513
• Parties: MONTGOMERY v. BRUSH and another.
• Court: Illinois Supreme Court

121 Ill. 513

13 N.E. 230

MONTGOMERY

v.BRUSH and another.

Supreme Court of Illinois.

September 27, 1887.

Appeal from appellate court, Third district; JAMES A. CREIGHTON, Judge.

The appellees, Edward McGuire and Samuel T. Brush, recovered a judgment of $1,500, in the circuit court of Sangamon county, against the appellant, Lewis E. Montgomery, in an action of trover for the alleged conversion of 131 head of cattle belonging to the plaintiffs. This judgment, on the appeal of Montgomery, was affirmed by the appellate court for the Third district, and the defendant again appealed. The cattle in question were a part of a lot of 218 which are conceded to have belonged to the plaintiffs on the sixteenth day of June, 1885. They were then in Jackson county, where the plaintiffs reside. On that day the plaintiffs entered into a written contract with Milligan & McIlvane in respect to the pasturage, keep, and sale of the cattle, which contract is as follows:

‘This agreement, made and entered into this sixteenth day of June, A. D. 1885, between Edward McGuire and Samuel Brush of Carbondale, Illinois, party of the first part, and Milligan & McIlvance, a firm composed of W. M. & McIlvane, a firm composed of W. M. and T. D. McIlvane, of Christian county, Illinois, party of the second part, witnesseth that the said party of the first part have, on the date of this agreement, appointed the said firm of Milligan & McIlvane their agents to sell a certain lot of cattle, and have this day consigned to the said firm at Moawequa, in Christian county, Illinois, to be transported by the Illinois Central Railroad Company, the said lot of cattle, consisting of two hundred and eighteen (218) head, principally one and two years old, to be sold by the said Milligan & McIlvane, as the agents of the said McGuire and Brush, under the following limitations: In consideration of the present value of said cattle, and the probable increase by reason of growth and improved condition, and for other valuable considerations, the said Milligan & McIlvane are to assume all expense and charge of transportation, feed, pasturage, and care of said cattle from and after the date of this agreement, and hereby agree to sell, or otherwise dispose of, said cattle, on or before the first day of November, 1885, and hereby guaranty and agree, and by these presents bind themselves, their heirs, administrators, executors and assigns, to pay unto the said Edward McGuire and Samuel Brush, or their order, their heirs, administrators, executors, or assigns, on or before the first day of November, 1885, the sum of thirty-four hundred and forty-four dollars, ($3,444,) with interest at the rate of eight per cent. per annum from the date hereof, until the same be paid; it being understood and agreed that any amount in excess of the above-named sum, with interest at eight per cent. per annum from this date until the same be paid, arising from the sale of said cattle, shall be paid to and held by said Milligan & McIlvane as their compensation as agents, for freight charges, feed, and pasturage, and all other expenses incurred on account of same until sold.

‘It is further understood and agreed by said Milligan & McIlvane that, whenever any number or part of said cattle are sold by them, the proceeds of such sale, after deducting pro rata expenses and charges, is to be paid to the said McGuire and Brush,-such payment to be entered on this contract as a credit; and when the sum of such payments shall amount to the aforesaid sum of thirty-four hundred and forty-four dollars ($3,444) and accrued interest, then this agreement shall be canceled, and the cattle remaining unsold, if any, shall become the property of Milligan & McIlvane.

‘It is understood and agreed that the said Milligan & McIlvane are and shall act as agents of the said McGuire and Brush for the sale of the aforesaid cattle, and, in case of the death or inability to act of either member of said firm of Milligan & McIlvane, then the surviving partner shall carry out and execute the terms of this agreement; and, further, if both members of said firm shall die, or be prevented by disability from carrying on their business before compliance with this contract, then the said McGuire and Brush, or their assigns, shall have the right to take possession of any or all of said cattle remaining unsold and accounted for at such time, and to sell the same to the best advantage, and apply the proceeds to the payment of the balance that may be due upon the contract, paying over the residue, if any, to the heirs or assigns or legal representatives of the said firm of Milligan & McIlvane.

‘In witness whereof the said parties have hereunto set their hands and seals, the day and year first above written.

‘EDWARD MCGUIRE. [Seal.]

‘SAMUEL T. BRUSH. [Seal.]

‘MILLIGAN & MCILVANE. [Seal.]

‘It is hereby mutually agreed that the within agreement, contract, and agency, in all its parts, provisions, and conditions, shall be and it is hereby renewed, prolonged, and extended to and until the first day of September, A. D. 1886.

‘In witness whereof we, the parties to the within agreement, have hereunto fixed our hands and seals, this ninth day of November, A. D. 1885.

‘EDWARD MCGUIRE. [Seal.]

‘SAMUEL T. BRUSH. [Seal.]

‘MILLIGAN & MCILVANE.’ [Seal.]

In the evening of the day on which the original contract was entered into, the cattle were shipped in pursuance thereof to Milligan & McIlvane, at Moawequa, by way of the Illinois Central Railroad, McGuire accompanying them. On their arrival at Moawequa they were driven to what is known in that locality as the ‘Turner Farm,’ being the same upon which McIlvane was then living. The farm contained from four to five hundred acres in grass, and was used by Miligan & McIlvane for pasturing and herding cattle. The first or used by Milligan & McIlvane for pasturing at the Turner farm, McGuire, in company with Milligan, went over to the farm of the defendant, some 12 miles distant in a north-east direction, where they met the defendant, took dinner with him, examined his pastures, cattle, etc. During the interview, McGuire informed him of having brought the 218 head of cattle to the Turner farm, but nothing in particular seems to have been said as to their ownership, or the terms or conditions upon which they were put there.

Before the making of the contract above set forth, Milligan & McIlvane had entered into a somewhat similar one with Montgomery, in respect to the purchasing and pasturing of cattle. While that contract bears no date, yet Montgomery swears it was finally concluded on the last days of April, 1885. The contract, together with the one supplemental thereto, dated October 7, 1885, is as follows:

‘Memorandum of agreement between L. E. Montgomery, of Springfield, Illinois, of the first part, and W. H. Milligan, of Pinkneyville, Ill., and T. D. McIlvane of Willeys, Ill., known and doing business under the firm name of Milligan & McIlvane, party of the second part, witnesseth that the said Montgomery agrees to furnish the following described tract of pasture land, to-wit: The N. E. 1/4 of sec. 23, S. E. 1/4 of sec. 28, S. 1/2 N. E. 1/4 of sec. 28, W. 1/2 N. W. 1/4 of sec. 27, W 1/2 S. W. 1/4 of sec. 27, Tp. 15 N., R. 2 W., of 3d P. M., Christian county, Ill.,-and containing 440 acres, more or less, at the sum of twelve hundred dollars, and he is also to furnish five thousand dollars ($5,000) in money,-one-half by April 1, 1885, and one-half by May 1, 1885,-to be used as follows: The said Milligan & McIlvane are to purchase five thousand dollars' ($5,000) worth of young, growthy, healthy cattle, to stock...