Nat'l Malleable Castings Co. v. Iroquois Steel & Iron Co.

• Decision Date: 20 February 1929
• Docket Number: No. 18616.,18616.
• Citation: 333 Ill. 588,165 N.E. 199
• Court: Illinois Supreme Court
• Parties: NATIONAL MALLEABLE CASTINGS CO. v. IROQUOIS STEEL & IRON CO.

333 Ill. 588

165 N.E. 199

NATIONAL MALLEABLE CASTINGS CO.

v.IROQUOIS STEEL & IRON CO.

No. 18616.

Supreme Court of Illinois.

Feb. 20, 1929.

Commissioner's Opinion.

Error to Second Branch of the Appellate Court, First District, on Appeal from Municipal Court of Chicago; Charles F. McKinley, Judge.

Action by the National Malleable Castings Company against the Iroquois Steel & Iron Company, Judgment for plaintiff was affirmed in the Appellate Court on remittitur of interest, defendant brings certiorari, and plaintiff assigns cross-errors.

Affirmed.Edwin J. Raber, of Chicago, for plaintiff in error.

Butler, Lamb, Foster & Pope, of Chicago (Allan J. Carter and Arthur Fisher, both of Chicago, of counsel), for defendant in error.

PARTLOW, C.

Defendant in error, the National Malleable Castings Company, began an action of assumpsit in the municipal court of Chicago against plaintiff in error, the Iroquois Steel & Iron Company, for money had and received. There was a trial by the court without a jury, and a judgment was rendered against plaintiff in error for $2,223.87, together with $383.30 interest. An appeal was prosecuted to the Appellate Court for the First District, where the judgment was affirmed upon defendant in error entering a remittitur of the interest. The case comes to this court upon a writ of certiorari.

This suit was to recover excessive payments on four cars of iron delivered by plaintiff in error to defendant in error which are alleged to have been paid for on the basis of false weights. Defendant in error was a large user of malleable iron at one of its plants in Cicero, Ill. Plaintiff in error was a dealer in scrap iron, and had a yard in Chicago which was connected by a side track with the Baltimore & Ohio Chicago Terminal Railroad Company. This railroad also had a switch track at the Cicero plant of defendant in error. Defendant in error purchased this iron through certain parties, referred to in the pleadings as brokers, who bought it from dealers, including plaintiff in error. There were written contracts between defendant in error and the brokers and between the brokers and plaintiff in error and other dealers. None of the brokers ever had possession of the iron, nor did any of their agents see the shipments. Each car was delivered by plaintiff in error to the railroad company on bills for direct shipment from the yard of plaintiff in error to the plant of defendant in error, in which bills plaintiff in error was named as consignor and defendant in error as consignee, and plaintiff in error paid the freight.

The first car was received by defendant in error on May 17, 1920. The iron was bought from Rotter-Speer & Co., of Cleveland, Ohio, which had a contract with defendant in error for the delivery of 500 tons of scrap iron. Rotter-Speer & Co. bought the iron from Feinberg & Kahn, of Chicago, who bought it from plaintiff in error. It is claimed by defendant in error that the car was billed for 97,700 pounds, payment was made for 97,460 pounds, its actual weight was 53,200 pounds, and there was a shortage of 44,260 pounds, amounting to $602.64. Evidence was admitted tending to show that on May 12, 1920, Rotter-Speer & Co. advised defendant in error that the car had been shipped; that on May 24, 1920, they sent defendant in error a bill for 97,700 pounds, a check was sent by defendant in error to them on June 9, 1920, for its payment, and Rotter-Speer & Co. paid Feinberg & Kahn $1,439.33. Morris Kahn testified that Feinberg & Kahn paid plaintiff in error for this car, but he did not remember the amount; that they had destroyed all of their books showing this payment after they thought the government was through making examinations relative to their income tax.

The second car was received by defendant in error on November 17, 1920. The iron was bought from the Commercial Steel & Supply Company of Cleveland, Ohio, with whom defendant in error had a contract. This firm is now out of business, and defendant in error was unable to produce the books showing payment by this corporation to plaintiff in error, from whom the iron was purchased. It is claimed by defendant in error that this car was billed for 103,900 pounds, payment was made for 103,640 pounds, the actual weight was 25,700, and the shortage was $1,009.04. Evidence was admitted that on November 15, 1920, defendant in error received notice from the Commercial Steel & Supply Company that the car had been shipped; that on November 15, 1920, plaintiff in error received an invoice from the Commercial Steel & Supply Company for this car with a net weight of 103,900 pounds, amounting to $1,345.14, together with a bill dated November 22, 1920, for $1,166.49 for a car not in controversy; and that on December 7, 1920, the check of defendant in error was sent to the Commercial Steel & Supply Company in full payment for these two cars. A duplicate freight bill of the railroad company, dated November 15, 1920, was introduced in evidence, showing a weight of 25,700 pounds on this car.

The third car was received by defendant in error on May 21, 1921. The iron was purchased by it from the Ohio Iron & Metal Company and by that company from plaintiff in error. Defendant in error claims that the car was billed as weighing 76,700 pounds, payment was made on the basis of 76,420 pounds, the actual weight was 27,900 pounds, and there was a shortage of 48,520 pounds, amounting to $324.91. Evidence was admitted tending to show that on May 24, 1921, defendant in error received an invoice from the Ohio Iron & Metal Company for this car showing a net weight of 76,700 pounds, amounting to $496.49, that on June 1, 1921, a check was sent by the defendantin error to the Ohio Iron & Metal Company for $939.07, being for 76,700 pounds on this car and for another car not in controversy, and that the Ohio Iron & Metal Company paid plaintiff in error $479.38 for this car on the basis of 76,700 pounds. A duplicate freight bill of the railroad company was admitted in evidence showing a weight of 27,900 pounds on this car.

The fourth car was received by defendant in error on May 24, 1921. The iron was purchased from Hickman & Williams, who purchased it from plaintiff in error. Defendant in error claims that it was billed as weighing 75,300 pounds, payment was made upon that basis, the actual weight was 32,400 pounds, and there was a shortage of 42,900 pounds, amounting to $287.28. Evidence was admitted tending to show that on May 26, 1921, an invoice was received by defendant in error from Hickman & Williams showing a net weight of 75,300 pounds, amounting to $484.99, that on June 5, 1921, a check to the order of Hickman & Williams was sent by defendant in error and was paid, and that Hickman & Williams received from plaintiff in error an invoice for $479.03, dated June 2, 1921, for 75,300 pounds. A duplicate freight bill of the railroad company showed 32,400 pounds as the weight of this car. On June 21, 1921, Hickman & Williams paid to plaintiff in error $479.03 on this car.

When each car reached the plant of defendant in error it was again weighed by the employees of defendant in error in compliance with the written contracts between defendant in error and its brokers, which provided that defendant in error was to pay on the basis of its own weights. Defendant in error claims it paid for these cars on fraudulent weights made at its plant by Thomas Moore, one of its employees who was working under the direction of Forrest Allen, another employee. John D. Hiatt, superintendent of purchases for defendant in error, testified that shortages and a system of false weights were discovered by defendant in error in February, 1922. Moore testified that he had been changing weights at Allen's direction for a year or a year and a half, but did not know how many cars had been changed. The evidence shows that each of the four cars was weighed by the railroad company on its Homan avenue scales immediately after it left the yard of plaintiff in error and before it was delivered to defendant in error. Two of the men who weighed these cars testified that the practice was for the weighmaster to enter the gross weight, the tare weight, and the net weight on switching cards and to transfer the weights to a permanent book immediately upon returning from the scales to the office, which were about half a block apart. The original book of weights of the railroad company was admitted in evidence. On each of the four cars the railroad sent a freight bill to plaintiff in error. Plaintiff in error was served with notice to produce its books, which it failed to do. The railroad duplicates of the freight bills on the second, third, and fourth cars were admitted in evidence. Clifford Gordon, secretary of plaintiff in error, testified that plaintiff in error was paid on the basis of the weights sent to it by defendant in error. Walter S. Gordon, president of plaintiff in error, testified that about the middle of February, 1922, they destroyed all of the books of the company for the period prior to January 1, 1922. They both testified that some one broke into their safe and scattered these books and documents upon the floor. They made no attempt to save any of the entries before burning the books, which covered transactions as recent as two weeks prior to the date of the destruction. Clifford also testified that correspondence files with various consignors and consignees were all destroyed several years earlier.

It is insisted by plaintiff in error as a matter of law that an action for money had and received does not lie under the facts in this case; that there is no evidence that plaintiff in error received any pay for the first two cars; that plaintiff in error was an entire stranger to the contracts between defendant in error and its brokers; that, when defendant in error made a payment, the money paid became the property of the party to whom it was paid; that on the last two cars the...