Pardridge v. Brady

• Decision Date: 31 October 1880
• Citation: 7 Bradw. 639,7 Ill.App. 639
• Parties: EDWIN PARDRIDGE ET AL.v.MARY BRADY.
• Court: United States Appellate Court of Illinois

7 Ill.App. 639

7 Bradw. 639

EDWIN PARDRIDGE ET AL.

v.MARY BRADY.

Appellate Court of Illinois, First District.

October Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding. Opinion filed January 4, 1881.

This was an action of trespass, brought by appellee, Mary Brady, against appellants, for breaking and entering her dwelling-house, and taking away household furniture, carpets, etc. Pardridge and Stokes were members of the firm of C. W. and E. Pardridge & Co., merchants, in the city of Chicago. Hurley was the manager of their carpet department, and as such had sold to appellee's husband carpeting on credit, taking his note therefor, secured by a chattel mortgage on the goods purchased, and certain articles of furniture, appellee joining in the mortgage. At the maturity of the note Brady gave a new note, and a new mortgage to secure it upon the same property and some other goods. Mrs. Brady did not join in this mortgage, but at the request of Hurley executed a written waiver of her interest in the property covered by the mortgage. The note secured by this mortgage matured May 3d, 1878, at which time the indebtedness had been reduced to $237.70, for which Brady gave his six notes for $25 each, payable monthly; also one note for $27.70, due in seven months, these notes being secured by a chattel mortgage, not joined in by Mrs. Brady, on the same goods; also a note for $60, secured by a pledge of other property.

In July following, the goods were removed, without the knowledge of the mortgagees, from Bishop Court Hotel, where they were at the time the mortgage was executed, to No. 31 North Ashland avenue, there being then due and unpaid, three of the twenty-five dollar notes, the notes for $27 and $60 not having matured.

The mortgage authorized a seizure and sale of the goods, upon failure to pay any or either of the notes, or in case the goods should be removed without the consent of the mortgagees. Upon learning that the goods had been removed, Hurley gave the notes and mortgage to Howard, with instructions to foreclose the same by seizure and sale of the goods, if the entire amount of the claim, less a small deduction, was not paid immediately.

Howard, accompanied by several men, went to the house, seized the goods against the protest of Mrs. Brady, disregarding her request for time to send for her husband, as well as her offer, as she testifies, to go with Howard to the bank to get the money with which to pay the claim; took the goods away to a remote and obscure place, where he sold them, the same day, at private sale for $210. It appeared from the evidence that the furniture in the house belonged to appellee.

Appellants pleaded the general issue, and a special plea justifying the taking and sale of the goods under the power contained in the mortgage. On the trial, among the instructions given by the court at the instance of the plaintiff was one in substance, that if the jury believed from the evidence that if before the sale of the goods under the mortgage, the plaintiff tendered to the defendants, the amount of the debt and costs accrued thereon, the defendants after such tender, had no right to sell the goods.

Another instruction, the 12th, was as follows:

“In assessing damages in this suit, if the jury believe from the evidence, that the defendants, or any of them, are guilty, they can allow the plaintiff as damages the value of the goods unlawfully taken by such defendants from the plaintiff, as shown by the evidence, with interest at six per cent. per annum from such taking; and also if you believe from the evidence that such defendants, or some of them, committed the trespasses complained of in a wanton, willful and malicious manner, you may allow said plaintiff exemplary damages as compensation for the injury inflicted upon her, and to punish such defendants who so acted wantonly and willfully for committing said trespasses, and to deter others from like practice.”

The jury found all the defendants guilty, and assessed the plaintiff's damages at $500, for which sum the plaintiff had judgment. The defendants bring the case to this court by appeal and assign various errors, and among them the giving of plaintiff's instructions.

Mr. FRANK BAKER, for appellants; that an instruction not based upon evidence in the case is erroneous, cited Alexander v. Mt. Sterling, 71 Ill. 366; Bradley v. Parks, 83 Ill. 169; Herrick v. Gary, 83 Ill. 85.

A person ratifying a trespass is liable for actual damages only: Grund v. Van Vleck, 69 Ill. 478.

Where there are several defendants against whom exemplary damages are sought, it is error to instruct the jury that they may take into consideration, the pecuniary condition of each defendant: Smith v. Wunderlich, 70 Ill. 426; T. W. & W. R. R. Co. v. Smith, 57 Ill. 517.

Mr. M. J. DUNNE, for appellee; as to exemplary damages, cited C. R. I. & P. R. R. Co. v. Herring, 57 Ill. 59; C. & N. W. R. R. Co. v. Chisholm, 79 Ill. 584; Johnson v. Barber, 5 Gilm. 425; Moir v. Hopkins, 16 Ill. 313; Noble v. Cunningham, 74 Ill. 51; I. & St. L. R. R. Co. v. Cobb, 68 Ill. 53.

WILSON, J.

We are compelled to reverse this judgment, but not without some regret. A perusal of the testimony has impressed us with the conviction that the power of sale, contained in the mortgage, was exercised in a harsh, oppressive, and seemingly wanton manner. Howard and his men entered the house of which appellee was in quiet possession under a lease, without her consent, and when asked by her what they wanted, she was informed by him that he had a mortgage on the furniture which they had come to take away. She told him she did not know that there was a mortgage on anything, and requested him to wait until she could send for her husband. He refused, and with his men pressed on up stairs, and began to take up the carpets. She followed him and asked what the amount of the claim was, and upon being informed that it was $160, she told him she would rather pay it than have her things torn up, and, as she testifies, asked him to go with her to the bank, to get the money, telling him he might leave the men in the house until their return. This he declined to do, and immediately proceeded to remove the furniture, bedsteads, dressing cases, tables, throwing the carpets out of the windows, when appellee began to cry, and again asked him to go with her to get the money. Paying no heed to her request, and regardless of her distress, he took the goods away, without informing he?? where they were to be taken to, and sold them the same afternoon, at private sale, for $210, the amount claimed to be due, with an addition of...