Race v. Chandler

• Decision Date: 31 October 1884
• Citation: 15 Bradw. 532,15 Ill.App. 532
• Parties: RICHARD T. RACEv.ALBERT F. CHANDLER.
• Court: United States Appellate Court of Illinois

15 Ill.App. 532

15 Bradw. 532

RICHARD T. RACE

v.ALBERT F. CHANDLER.

Appellate Court of Illinois, First District.

October Term, 1884.

OPINION TEXT STARTS HERE

ERROR to the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding. Opinion filed November 11, 1884.

This was an action of trover, brought by Albert F. Chandler against Richard T. Race, to recover damages for the conversion of three promissory notes, one for $1,410, dated May 19, 1876, and the other two for $200 each, dated August 2, 1876, all bearing interest at the rate of eight per cent. per annum. At the trial, without a jury, the court found the defendant guilty, and assessed the plaintiff's damages at $1,810, the face of the notes, without interest.

These notes originally belonged to the defendant and were drawn payable to his order, but were assigned and transferred by him to the plaintiff, together with certain deeds of trust securing the same, shortly after their execution, in payment for a bill of merchandise. Afterward, on the 16th day of August, 1877, the plaintiff delivered them back to the defendant and took from him a receipt, acknowledging that he had received them from the plaintiff “for collection, or transfer for his benefit.” Said notes were never collected or transferred by the defendant but were in his possession at the time of the commencement of the suit, and the principal question in the case was whether the evidence established a conversion.

The only witnesses who testified were the plaintiff, the defendant and the plaintiff's attorney. The plaintiff's testimony on this point was as follows:

“I met the defendant in Coldwater and called on him for the notes; I think it was some time in 1879; he was there looking at some of his property and I told him I wanted to get this matter in line. He told me he thought he could make some disposition of them, and I told him I wished he would, because I would like to see it closed up, and he said he would do it and let me know. He didn't write to me and I heard nothing from him. The next time I met him in Chicago and he told me not to go to any expense, that he would get it foreclosed and give me a title, and I told him to do so if he would, and I would pay any expense he was put to. I met him next in October, 1882, in a building on Clark street, and spoke to him about it and told him that I wanted to get this in line. I says, ‘I have employed an attorney--Mr. Sprague.’ ‘Well,’ says he, ‘I will bring those papers to Mr. Sprague.’ I says, ‘I wish you would, I have been here a long time now, trying to get this matter in line and I would like to have it drawn up to a focus and find out whether I have got anything there or not,’ and he said he would do so at once. The next time I said anything to him about it was February 26, 1883. I was here four days before I found him. ‘Why, yes,’ he says, ‘I will bring those papers down.’ I says, ‘Now go right over to my attorney with me and we will fix it up with him, as I want to go away and I can't foreclose this trust deed without those notes,’ and he agreed to deliver the trust deed and notes the next morning at ten o'clock. He said he thought it was in his brother's name but he could not tell then. In the presence of my attorney Mr. Race said certainly, that the notes should be delivered there, and I might just as well have a title to that property as not, and he would attend to it the next morning at ten o'clock. I says, ‘Mr. Race, I have been here a good many days and I would like to have these papers brought up so my attorney can take charge of it’ and he says, ‘They will be here.’ ”

Sprague, the plaintiff's attorney, testified: “About the 9th of October the plaintiff called at my office and gave me this receipt with an order on it for the notes, but Mr. Race did not come around. I waited some time and notified him by letter that I had the matter in charge, and requested him to call and see me; but I didn't see him, so I notified Mr. Chandler and he came to my office on the 26th of February, 1883, in company with Mr. Race. He introduced Mr. Race to me and told me he had brought him there for the purpose of having me see him. He said to Mr. Race, in my presence, ‘Now, Mr. Race I demand of you those notes referred to in that receipt. I want you to deliver those notes to me or to Mr. Sprague, my attorney here. I want him to take action in the matter as I have been delayed long enough.’ Mr. Race stated then and there, in substance, that he would surely bring up the notes and deliver them to me the next morning. I asked him who was the trustee named in the trust deed, and he says, ‘It is either I or my brother, I am not certain which.’ “What is your brother's name?' I asked, and he said ‘A. S. Race.’ Mr. Race did not call on me on the 27th nor the 28th, and I waited until the 3d of March, and not hearing from him I brought this suit. On the 5th of March he came into my office and brought with him what purported to be the notes in question, and offered them to me but I declined to receive them. I told him that I had commenced suit and could not accept them, at least until I had heard from my client. He went away, however, leaving the notes upon my table, and I took them after he went away and put them into my drawer. Later in the day he called with his attorney to talk with me in regard to the notes, and I said, ‘Here are your notes; you can have them,’ and after some conversation he took them away. I told him in that conversation that I should have to insist upon our rights, as he had not brought them around as he agreed to and I had brought this suit.”

The defendant testified as follows: “I remember going to Mr. Sprague's office with Mr. Chandler on the 26th of February, 1883. Just before I went there Mr. Chandler called on me in reference to those notes, saying that he had made up his mind to have his attorney foreclose, and asked for the notes. I said I hadn't them there; I thought they were out at my house at Irving Park. I said I would get them and bring them in. He asked me if I could get them that afternoon, and I said yes, we would go out on the 3:30 train, and he could return in about an hour afterward, and I could give them to him. He made an appointment to meet me at three o'clock, which he did, and we started, as I supposed, for Irving Park to get the notes; and as we started he says, ‘Let us walk up La Salle street here and call on my attorney, Mr. Sprague, as I want to get some facts with reference to the lots and the foreclosure, and would like to have you meet him.’ I called up there with him and he introduced me to Mr. Sprague, and while there he says, ‘It will not be necessary for me to go out with you; you may go out and get them and bring them in.’ I says, ‘Certainly, I will bring them in,’ and I told him that I would have them here the next day if I could. That was the conversation in substance. No demand was made more than they asked me to bring them in the next day from Irving Park. The word demand was not used. He never asked me for them before. He talked once or twice of having the lots foreclosed. I expected to return the next morning, and I thought I would bring them. When I arrived home that night I found my father dangerously ill, and the doctor there at the bedside. He had a congestive chill. We were up with him all that night, and attending to him all the next day and the next three or four days--myself and family and father's brother-- and for days we didn't think he would live from hour to hour, but he recovered, and I think in about three or four days I came in. During that time of excitement I did not think to look for the notes; and then on the morning I came in, just before I got ready to start, I supposed I could put my hand on the notes, but I didn't find them. I remembered, in the meantime, that I was out to Aurora where I had a store for two years, and left them there with my brother, and I thought probably they might be there among his papers. I went and found them there and brought them that morning on...