Nat'l Cash Register Co. v. Clyde W. Riley Advertising Sys.

• Decision Date: 06 April 1928
• Docket Number: Nos. 18034,18035.,s. 18034
• Citation: 160 N.E. 545,329 Ill. 403
• Parties: NATIONAL CASH REGISTER CO. v. CLYDE W. RILEY ADVERTISING SYSTEM et al.
• Court: Illinois Supreme Court

329 Ill. 403

160 N.E. 545

NATIONAL CASH REGISTER CO.

v.CLYDE W. RILEY ADVERTISING SYSTEM et al.

Nos. 18034, 18035.

Supreme Court of Illinois.

Feb. 24, 1928.

Rehearing Denied April 6, 1928.

Error to Appellate Court, First District, on Appeal from the Municipal Court of Chicago; Philip J. Finnegan, Judge.

Separate trials of right of property by the National Cash Register Company against the Clyde W. Riley Advertising System and others. Cases consolidated for hearing. Judgments for plaintiff were affirmed by the Appellate Court, and defendants bring certiorari.

Judgments of the Appellate Court and the municipal court reversed, and cause remanded to the municipal court.

William R. Wiley, of Chicago, for plaintiffs in error.

Meads & Scott, of Chicago, for defendant in error.

STONE, J.

This consolidated cause comes here on writ of certiorari to review the judgment of the Appellate Court affirming the judgment of the municipal court of Chicago in a case of the trial of right of property under the statute. The Riley Advertising System secured a judgment against Charles Weeghman and levied on two cash registers in the possession of Weeghman. The defendant in error sought a trial of the right of property under claim of a superior lien arising out of a chattel mortgage covering the cash registers. There were two suits of this character, and the property involved in each was two cash registers. The causes were consolidated for hearing, and subsequently, on review, consolidated for hearing in the Appellate Court and in this court.

The lien claimed by the defendant in error is based on two mortgages covering the four cash registers involved. The plaintiffs is error claim that the mortgages were defectively executed and acknowledged and did not comply with the statute of the state of Illinois relating to chattel mortgages (Smith-Hurd Rev. St. 1927, c. 95, §§ 1-12), and that while as between the parties thereto they might be valid, they are void as against judgment creditors of Weeghman.

It appears that on or about May 18, 1925, a written order for three cash registers was given defendant in error, signed, ‘Carol's Inc., by Chas. Weeghman.’ This order directed that the National Cash Register Company deliver the three cash registers, described the machines, and prescribed the terms of payment. It provided that a chattel mortgage should be entered into to assure the payment of the purchase price. At the lower left-hand corner of the order appears the direction to print the purchaser's name plainly thereon. This was followed by the printed words, ‘Carol's Inc.’ The order was a printed form evidently used by defendant in error in its business of selling cash registers. On May 28, 1925, another order for one cash register was made, executed and signed as the first. Both orders are alike in all respects as to signature and provisions, except as to the descriptions of the cash registers and amount of payments. Thereafter, on the 27th day of July, 1925, the following instrument was entered into:

‘Know all men by these presents: That Carol's Inc. (business, luncheonette, 17 S. Dearborn street, Chicago, Illinois), in consideration of $1,200 to him paid by the National Cash Register Company, a corporation of Dayton, Ohio, does hereby sell and convey to the National Cash Register Company, its successors and assigns, three National cash registers, [numbering and describing them], and said mortgagor does warrant that he is the owner of said registers and that it is free and clear of incumbrances. Provided, nevertheless, if said mortgagor shall pay to said mortgagee his note dated 7/27/1925 for $1,200, payable in 15 payments of $75, one of $74, due one each month after date, respectively, and for the payment of $1 due two years after date, or any note given in renewal of the same, then this mortgage shall be void.’

Thereafter said instrument contains the usual language of such instruments permitting the mortgagor to retain possession of the property and providing for further security in case the mortgagee requires. The signature to this instrument is as follows:

‘Signed this 27th day of July, 1925.

‘Carol's Inc. [Seal.]

‘Chas. Weeghman.’

The word ‘seal’ was a part of the printed form used. Appearing on this instrument was the following acknowledgment:

‘This mortgage was acknowledged before me by the within named Carol's Inc. by G. C. Miller, his, Chas. Weeghman, attorney in fact for all purposes named in said instrument, and entered by me this day of July 30, 1925.’

The acknowledgment was sealed with the seal of the municipal court of Chicago and signed by the clerk thereof. A power of attorney was entered into in the following language:

‘I, Carol's Inc., Chas. H. Weeghman, the mortgagor, do hereby make, constitute and appoint G. C. Miller my attorney in fact, to appear for me and in my behalf before James A. Kearns, clerk of the municipal court of Chicago, and acknowledge the execution of the within instrument in my name and for me for all purposes as I might do, with the same force and effect.

‘Given under my hand and seal the 27th day of July, A. D. 1925.’

This was signed, ‘Carol's Inc. [Seal.].’ Beneath that name appears the word ‘Mortgagor,’ and beneath that word, ‘Chas. Weeghman.’

In the acknowledgment to this execution of power of attorney the notary public certifies that:

‘Carol's Inc. Chas. Weeghman, personally known to me to be the same person whose name is subscribed to the foregoing instrument authorizing the acknowledgment of the foregoing mortgage by an attorney in fact, appeared before me this day in person and acknowledged that he signed, sealed and delivered said instrument as his free and voluntary act for the uses and purposes therein set forth.’

The chattel mortgage as to the fourth cash register was identical, except as to date and description of the machine. The promissory note used in each case in connection with the chattel mortgage first given was as follows:

‘For value received _____ promise to pay to the order of the National Cash Register Company, at Dayton, Ohio, $1,200 in _____ payments, payable as below.

‘Sign here: Carol's Inc.,

‘By Chas. Weeghman.

‘This note is secured by chattel mortgage.

‘Notice to Agents.-Print name of customer plainly on this line.’

On the line referred to was printed, ‘Carol's Inc. No. 17, S. Dearborn St., Chicago, Ill.’

Plaintiffs in error contend that these orders, chattel mortgages, and notes indicate that Weeghman was not purchasing the cash registers as an individual and did not execute the notes and mortgages in that capacity, and that by the use of the letters ‘Inc.,’ constitutiing an abbreviation of the word ‘incorporated,’ the instruments must be construed as those of a corporation; that as such they were invalid, as not being in the form or having the acknowledgment required by the statute. The defendant in error contends that the record shows that the cash registers were purchased by Weeghman individually, and that the orders, notes, and mortgages were so given.

This is an action to try rights of property. The burden is upon defendnat in error, as plaintiff in that action, to show a superior lien. Its claim...