Morrison v. Smith

• Decision Date: 31 January 1876
• Parties: JOSEPH C. MORRISONv.JAMES SMITH.
• Court: Illinois Supreme Court

81 Ill. 221

1876 WL 9957 (Ill.)

JOSEPH C. MORRISON

v.JAMES SMITH.

Supreme Court of Illinois.

January Term, 1876.

APPEAL from the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

Mr. L. E. PAYSON, for the appellant.

Messrs. WILLIAMS, BURR & CAPEN, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The parties to this suit were, in 1870, engaged as partners in feeding cattle, and, in the fall of that year, sold out the last lot of their cattle, and received therefor $4742.46, in a draft on Chicago, which appellee placed on deposit with Duff & Cowan, to the credit of Smith & Morrison. They had been unable to settle, on account of a difference between them as to how some interest on money appellant had advanced for their business, should be arranged. Fearing, as he alleges, that appellee intended to control the money so as to compel him to sue for a settlement, he went to the bank to draw the money, but Duff informed him that it was impossible to pay the money, and suggested to him that he give his check for the amount, and he would give appellant a draft on his banker in Chicago, at the same time informing him that he had no funds there to meet it, and if presented, it would not be paid, but it was agreed that he should hold it, and thus prevent appellee from getting the control of the money until they should settle.

Subsequently, and on the first day of December, 1870, Duff & Cowan suspended payment and went into bankruptcy. Appellant had received their draft on the 21st of November, ten days before they suspended, and no further arrangement having been made, appellant did not present the draft for payment, but after they suspended, he returned it, and Smith & Morrison received a credit therefor, and appellant subsequently proved up the claim, and has received dividends on it from the assignee, one-half of which he had offered to pay to appellee, but he declined to receive it. Appellee was not aware that appellant had received the draft, or that it was returned and canceled, and he and appellant had received a credit therefor, until after these arrangements had been made.

Under a bill filed by appellee for an account, the court below rendered a decree that Morrison pay to Smith one-half of the entire sum that was deposited to their credit.

Morrison appeals to this court.

It is urged that appellant appropriated and converted the entire sum to his own use, and has thereby rendered himself liable to account to his partner for one-half of the fund.

We think the evidence fails to show that appellant did, or, in fact, intended to, appropriate the money to his private purposes. He, no doubt, took possession and assumed the entire control of the fund, but it appears that it was for the use of the firm. He did not apply it to his private business, nor did he propose to do so, but only intended to place the fund in a position that appellee could not control it until they should settle, and if they could not, then to avoid the...