Ohio & Miss. Ry. Co. v. Kerr

• Decision Date: 31 January 1869
• Citation: 1869 WL 7706,49 Ill. 458
• Court: Illinois Supreme Court
• Parties: OHIO & MISSISSIPPI RAILWAY COMPANYv.JAMES M. KERR et al.

49 Ill. 458

1869 WL 7706 (Ill.)

OHIO & MISSISSIPPI RAILWAY COMPANY

v.JAMES M. KERR et al.

Supreme Court of Illinois.

January Term, 1869.

APPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding.

This was an action of replevin, instituted in the court below, by the appellees, James M. Kerr, George W. Howe and John H. Turner, against the appellant, the Ohio & Mississippi Railway Company, to recover a quantity of flour. The cause was tried before the court and a jury, and a verdict and judgment rendered for the plaintiffs; to reverse which judgment, the record is brought to this court by appeal. The facts in the case are fully stated in the opinion. Mr. GUSTAVUS KOERNER, for the appellant.

Mr. WM. H. UNDERWOOD, for the appellees.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

On the 30th of September, 1867, Kerr, Howe & Co., the appellees, sold to Lamb & Quinlin, in St. Louis, ninety-nine barrels of flour. There was no agreement for credit, and one of the appellees testifies the sale was made as a cash sale. In the afternoon of the next day the flour was delivered by the appellees to a transportation company, upon the order of Lamb & Quinlin, without payment, taken over the river, to the depot of the Ohio & Mississippi Railway Company, and consigned to New York. On the 2d of October the appellees demanded payment from Lamb & Quinlin, but were refused. The credit of the latter firm had been previously good, but on the 2d they failed, and subsequently went into bankruptcy. On the 3d of October, the appellees replevied the flour from the railway company, it not having yet been sent forward. On the first of October, however, Lamb & Quinlin negotiated their draft on New York, for $4,000, to the United States Savings Institution, and delivered the bill of lading as security. The bill of lading and draft were forwarded to New York, but the draft was not paid, nor was the flour received, as it had been replevied in this suit. The amount of the draft was placed to the credit of Lamb & Quinlin on the 1st, and checked out by them on the 2d. These facts are set up as a defense by the railway company, from whose custody the property was replevied.

This case falls fully within the principles laid down in Jennings v. Gage, 13 Ills. 610, and in Brundage v. Camp, 21 ib. 330, in the latter of which cases the authorities are fully reviewed. In the subsequent case, of Fawcett et al. v. Osborn et al., 32...