Olsen v. Kern
| Citation | 10 Bradw. 578,10 Ill.App. 578 |
| Parties | JENS OLSEN, Adm'r, etc.v.CHARLES KERN ET AL. |
| Decision Date | 31 March 1882 |
| Court | United States Appellate Court of Illinois |
ERROR to the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed April 10, 1882.
This was a replevin for a stock of goods. The facts were substantially as follows: Prior to January, 1877, Halvor Halvorson, husband of plaintiff's intestate, was engaged in business as a merchant tailor. On or about January 18th of that year one of his creditors, _____ Standish, caused an execution to be levied on his stock in trade, and sold the same at sheriff's sale. At this sale Jens Olsen and one John Anderson, who were guarantors of the note upon which the judgment was entered, in order to prevent the property from being sacrificed, and to protect themselves, attended the sale and bid off the goods and satisfied the execution.
They subsequently sold the goods to Carrie Halvorson, wife of Halvor Halvorson, the judgment debtor, taking in payment therefor the note of Carrie Halvorson and her husband, guaranteed by one William Harley. It is claimed, and so testified by Carrie Halvorson, that the consideration for Harley's guaranty was that he had promised to pay her $700 as a part of the purchase-money of a house and lot bought by him from her husband, and in which she had an equitable interest by reason of money furnished by her to her husband out of her separate estate, which had gone into the house.
Upon the sale of the goods by Olsen and Anderson to her, they were removed to a room over the store where Mrs. Halvorson lived. She subsequently replaced them in the store, changed the sign over the door, and employed her husband to carry on the business.
It was shown that Halvorson was insolvent, and there was evidence tending to show that the goods were sold by Olson and Anderson to Mrs. Halvorson, instead of her husband, to prevent their being seized by other creditors of Halvorson. There was also evidence of a sale of some goods by Harley to Halvorson after the sheriff's sale on the Standish execution, and that the same were placed in stock at the Halvorson store, but Mrs. Halvorson testified that her husband was acting for her, and as her agent, and that the goods thus purchased were all gone before the sheriff levied the Ellison execution on the goods replevied.
It was admitted upon the trial that the defendants took the goods under an execution duly authenticated and in force at the time of the levy, issued on a judgment in the Superior Court, January 27, 1877, in favor of Ellison et al. v. Halvor Halvorson for $400, and that the judgment was in full force and unpaid; that Kern was sheriff and Bartells his deputy, and that said judgment was for an indebtedness accruing prior to the sale of the goods in question to Carrie Halvorson, and that some of the goods taken were part of the stock originally sold by Olsen and Anderson, as aforesaid, and all the goods when taken were in the store on Milwaukee avenue, occupied by Halvorson.
At the conclusion of the testimony the court instructed the jury that the evidence did not tend to sustain the plaintiff's case, and directed the jury to find a verdict for the defendant, which they did. The plaintiff moved for a new trial, on the ground that the instruction was erroneous, and because the verdict was contrary to the evidence. The motion was overruled and the plaintiff excepted.
Mr. I. K. BOYESEN, for plaintiff in error; that a married woman may legally employ her husband as her agent to transact business with her property, without subjecting it to her husband's debts, cited Dean v. Bailey, 50 Ill. 481; Primmer v. Clabaugh, 78 Ill. 94; Blood v. Barnes, 79 Ill. 437; Dyer v. Keefer, 51 Ill. 525; McLaurie v. Partlow, 53 Ill. 340; Greenwood v. Jenkle, 68 Ill. 319; Pike v. Baker, 53 Ill. 163; Haight v. McVeagh, 69 Ill. 624; Bongard v. Core, 82 Ill. 19; Cubberly v. Scott, 98 Ill. 38.
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