Stinson v. Gould

• Decision Date: 30 September 1874
• Citation: 1874 WL 9075,74 Ill. 80
• Parties: JAMES STINSONv.JOHN S. GOULD et al.
• Court: Illinois Supreme Court

74 Ill. 80

1874 WL 9075 (Ill.)

JAMES STINSON

v.JOHN S. GOULD et al.

Supreme Court of Illinois.

September Term, 1874.

APPEAL from the Superior Court of Cook county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Mr. B. WALSH, for the appellant.

Mr. B. D. MAGRUDER, for the appellees.

Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

Appellees brought this suit in the Superior Court of Cook county, against appellant, to recover the value of eight iron lamp posts and fixtures. On the trial, in the court below, a jury was waived by consent of parties and a trial was had by the judge, who found the issues for the plaintiffs, and rendered judgment in their favor for $494 and costs, from which this appeal is prosecuted.

The controversy in the case turns upon the question whether appellant should have been allowed a set-off of $350, as a credit on appellees' account. This is the only question presented by the record, as there is no dispute that appellant had the goods, as charged. The grounds for claiming the set-off are, that appellant, in the summer of 1872, purchased of Crawford, Chamberlain & Co. a fountain, which was placed in his yard, but not being satisfactory to appellant, it was agreed that they should take it back and furnish him with vases or other goods in its stead.

It appears that appellant examined and perhaps selected two posts at the business house of Crawford, Chamberlain & Co., and saw drawings of others that were satisfactory, and six of that pattern were ordered for him. After this had all occurred, about from the 18th to the 21st of March, 1873, Crawford, Chamberlain & Co. sold out their stock or made an assignment of it to Brown, and he about the same time sold it to appellees without reservation, or any notice that appellees had given any order or claimed any of the goods embraced in the stock, so far as this record discloses. About the 22d of April, 1873, Crawford, one of the members of the firm of Crawford, Chamberlain & Co., called on appellees and stated that he had an order from appellant for the two lamp posts and six Boulevard lamp posts, and if appellees would pay him a commission he would fill the order at their store, otherwise he would send for them to Philadelphia. This seems to have been the first time they had seen Crawford. They accepted and filled the order, and delivered the posts to appellant; and on the next day Crawford had the fountain removed, and by permission of appellees it was stored at their business house.

It is claimed that Crawford was the agent of appellees, but dealt with these goods as his own, and from that fact appellant had the right to set off any claim held...