Reiss v. Hanchett

• Decision Date: 12 May 1892
• Citation: 31 N.E. 165,141 Ill. 419
• Parties: REISS v. HANCHETT, Sheriff.
• Court: Illinois Supreme Court

141 Ill. 419

31 N.E. 165

REISS

v.HANCHETT, Sheriff.¹

Supreme Court of Illinois.

May 12, 1892.

Appeal from appellate court, first district.

Replevin by Louis W. Reiss and John W. Goetz against Seth F. Hanchett, sheriff, to recover goods seized by the latter under certain writs of attachment. Defendant obtained judgment, which was affirmed by the appellate court. Plaintiff Reiss appeals. Affirmed.

Quigg & Bentley, for appellant.

Remy & Mann, (Goe. W. Brandt, of counsel,) for appellee.

BAKER, J.

In this action Louis W. Reiss, the appellant, and one John W. Goetz, composing the firm of John W. Goetz & Co., replevied from Seth F. Hanchett, the appellee, certain silks and other goods. Appellee was then sheriff of Cook county, and had levied upon said property a number of writs of attachment issued against Henry L. Strouse and Samuel Mayer, firm of Strouse & Mayer. The levies had been made on January 5, 1884, and on the 31st day of December preceding that date Strouse & Mayer had sold a stock of goods located in the premises known as ‘City of Paris Store,’ at Nos. 100 and 102 State street, Chicago, to the firm of which appellant was a member. The claim of the creditors and plaintiffs in the attachment suits was that Strouse & Mayer were insolvent at the time of the sale, and made the same with the intent of delaying, hindering, and defrauding their creditors; and that said Reiss and said Goetz either had actual knowledge of such insolvency and fraudulent intent, or had knowledge of facts and circumstances which, in contemplation of law, amounted to notice, and was equivalent to actual knowledge. The matters of such insolvency, fraudulent intent of Strouse & Mayer, and knowledge and notice were involved in the issue of the case at bar, and were conclusively settled in favor of appellee, as representative of the creditors, by the verdict and judgment in the circuit court, and the affirmance thereof in the appellate court; and more especially so since the instructions of the court upon which those matters were submitted to the jury are not here called in question.

The material inquiry before us is in regard to 58 pieces of silk, which were a part of the property levied on. Senny Cohen and Alexander Cowen both testified that said silks were bought by John W. Goetz & Co. from Marshall Field & Co. between the day of the purchase from Strouse & Mayer and the date of the levy; and moreover, it was stipulated at the trial that the goods mentioned in the testimony of Senny Cohen as the Marshall Field & Co. goods were not part of the stock purchased on December 31st by Goetz & Co. from Strouse & Mayer, but were bought by Goetz & Co. after that date. The judgments of the courts below were in favor of appellee in respect to said silks, as well as in respect to all other matters.

With reference to the Marshall Field & Co. silks in question, the court instructed the jury as follows: ‘Even though the jury shall believe from the evidence that part of the goods seized by the sheriff and in the controversy in this suit were bought by Goetz & Co. from Marshall Field & Co. after the purchase of the Strouse & Mayer stock, yet, if the jury further believe from the evidence that Goetz and Reiss were present when such levy was made, and knew that the sheriff intended to levy on the goods which composed the Strouse & Mayer stock, and that Goetz and Reiss knew that the goods levied upon were those bought from Field & Co.; and permitted said sheriff to make said levy under the supposition that said goods were the Strouse & Mayer stock, and that they did not then tell the sheriff that such goods had been by them purchased from Marshall Field & Co., and were not a part of the Strouse & Mayer stock, then the jury are instructed that they are estopped to claim that said goods so levied on were not the Strouse & Mayer stock.’ Said instruction is called in question on the ground that it was not authorized by the evidence. We recognize the claim that in this sort of case we may examine the evidence so far as to determine whether its tendency is such as to present a fair question of fact for the consideration of the jury, to which mooted points of law embodied in or omitted from instructions are applicable. Bank v. Page, 98 Ill. 109. One contention is that it is an essential element of an estoppel by conduct that the representation or concealment of material facts must have been with knowledge of such facts, and that the evidence did not present a fair question of fact upon the point ‘that Goetz and Reiss knew that the goods levied upon were those bought from Field & Co.’ We have no doubt of the correctness of the legal principle involved, but cannot concede the correctness of the claim in respect to the evidence. The identity of the Marshall Field & Co. silks were positively testified to by two employes of Goetz & Co. There was testimony tending to prove that they were in whole pieces, and in that way distinguishable from the Strouse & Mayer's silks; that they were kept wrapt up in the original papers in which they came to the store; that they were not the same class of silks, but a different kind from those that were in the store before, and that they were a different make, and had the manufacturer's numbers on them. And the implication from the admission made by Goetz to Remy is that he and others could distinguish them by the tabs. Goetz himself had bought said silks, and within a very few days, and both he and Reiss were present when the levy was made, and said silks taken from the shelves, and placed together on one side. And they were not removed from the store, but left in the custody of an employe of Goetz and Reiss, and a day or two thereafter replevied by the latter. This evidence, and especially so in the absence of denial of knowledge by them, strongly tends to prove that they knew the Marshall Field & Co. silks, and knew that the silks attached were silks that they had bought from said Marshall Field & Co. We think this objection is not well taken.

It is urged that the evidence does not tend to prove that Goetz and Reiss knew that the sheriff was making a mistake; that he intended to levy only on goods that had been delivered to them by Strouse & Mayer. The argument is that they might well have believed that the attaching creditors of Strouse & Mayer claimed that the business, though carried on in the name of Goetz & Co., was really still the business of Strouse & Mayer, and the Field & Co. silks therefore liable for the indebtedness due such creditors. It is an undisputed fact of the case that both Strouse & Mayer and Goetz and Reiss understood and intended the sale of the stock that was made to be an absolute rule. The latter took advantage of the dilemma in which the former were placed, and drove a hard bargain with them; and in the transaction the element of an intended secret trust for the benefit of Strouse & Mayer in the business thereafter to be carried on did not, as a matter of fact, enter as a factor. Goetz and Reiss well knew all these facts. There is nothing in the testimony tending to show that they supposed that the creditors of Strouse & Mayer were, by their...