Straus v. Minzesheimer
| Citation | 1875 WL 8520,78 Ill. 492 |
| Parties | MOSES STRAUS et al.v.FERDINAND MINZESHEIMER. |
| Decision Date | 30 September 1875 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding.
This was a suit in trespass, brought by appellee, Minzesheimer, against appellants, to recover damages for the taking of 10,700 cigars, to which Minzesheimer claimed title under a purchase from one Regina Blumenthal, the cigars having been levied upon and sold by appellant Ayars, a deputy sheriff, under a writ of attachment in favor of appellants Strauss and Sawyer, against Regina Blumenthal and one Schloss, her partner.
The record shows the following facts:
In 1872, Minzesheimer was in partnership with J. W. Schloss and Regina Blumenthal, in the cigar business, in Chicago, under the firm name of F. Minzesheimer & Co. This firm dissolved October 16, 1872, and the business was continued by J. W. Schloss and Regina Blumenthal, under the name of J. W. Schloss & Co. The new firm became indebted to Strauss & Co. in the sum of about $800. Regina Blumenthal lived in New York, and the business was conducted by Schloss, in Chicago. Julius Blumenthal, husband of Regina, came to Chicago, acting under a power of attorney from his wife, and dissolved the firm, Blumenthal taking the assets and agreeing to pay the firm debts. Blumenthal took charge of the firm assets, including cigars, tobacco and fixtures at store No. 39 South Canal street, and the cigars in controversy at factory No. 39 Waller street. Blumenthal was to take charge of the cigars as soon as they could be packed and ready to be stamped. Before they were packed or stamped, and on the 2d of January, 1873, Minzesheimer claims to have bought the cigars of Blumenthal. The alleged sale was made at 283 West Lake street, a mile and a half from the cigars at 39 Waller street. Minzesheimer had never seen the cigars. He paid $428 for them, and received a written memorandum of the sale. Blumenthal was to deliver them January 4, 1873. He was a brother-in-law of Minzesheimer. On the morning of the 4th of January, Minzesheimer, who was to pay for the stamps, purchased them, and went, with his son and Blumenthal, to the factory, with two wagons. Blumenthal pointed to the cigars, gave Minzesheimer several boxes, saying: “Here are your cigars.” Minzesheimer looked them over, and they began stamping. Schloss' foreman, in charge of the place, then offered to stamp them, with the aid of a boy, and have them completed by 4 o'clock, which was assented to, and Minzesheimer and Blumenthal then left. About 4 o'clock of the afternoon, Minzesheimer and Blumenthal came back, but, in the meantime, the levy had been made under the attachment writ, in favor of appellants Strauss and Sawyer, against Schloss & Co. Verdict and judgment were for plaintiff, and defendants appealed.
Mr. J. L. HIGH, for the appellants.
Mr. J. S. GRINNELL, for the appellee.
It is assigned for error, that the verdict is unsupported by the evidence, and that the court erred in giving and refusing instructions.
It is claimed that the alleged sale of the cigars to Minzesheimer was invalid, as being fraudulent as against creditors.
We are entirely satisfied with the correctness of the finding of the jury in this respect. We do not see how they could, under the evidence, have found otherwise.
The sale is further claimed to be invalid, because there was no delivery of the cigars to Minzesheimer, and no change of possession.
This is the chief point of controversy. We think it may be inferred, from the evidence, that 39 Waller street was the place where the firm of J. W. Schloss & Co. manufactured its cigars; that everything there belonged to that firm, although the license was taken in the name of J. W. Schloss; and that there was nothing at Waller street but these cigars, more than half of which were boxed.
On January 4, 1873, Blumenthal, having previously sold the cigars to Minzesheimer and received the pay, took Minzesheimer to the factory, at 39 Waller street, showed him the cigars, saying: “Here are your cigars,” and handing to him several boxes of them. Blumenthal paid the employees at the factory. Schloss gave him an order for the revenue stamps, which was necessary because of the license being in the name of Schloss individually. Minzesheimer paid for and obtained the requisite stamps, and commenced the work of stamping the cigars. The foreman suggested that, as it would take some time to complete the stamping, he, with the boy there, would attend to it, and have them ready on Minzesheimer's return in the afternoon. Minzesheimer gave the foreman a dollar to purchase some bay rum, with which to flavor the cigars.
During Minzesheimer's absence, the cigars were attached. Both Schloss and Blumenthal had done all they could do to complete the delivery of the property to Minzesheimer. The evidence fails to show that, after the alleged delivery to Minzesheimer, they exercised any control over the cigars, or were in possession thereof. Minzesheimer had commenced to stamp the cigars, and left an agent to complete the same. He would seem to have been the ostensible, as well as real, person in possession.
True, the cigars had not been actually removed, but this could not have been done before stamping, without violating the Revenue Law. Everything had been done, so far as respected the rights of the parties, as between themselves and their power to do so, to vest the complete title in, and to perfect the delivery to, Minzesheimer. The stamping required before removal, concerned alone the United States government, and that Minzesheimer undertook to do.
We think, from such facts, it is not to be asserted that the jury were not warranted in finding that there was a delivery of the cigars to the vendee, and a change of possession.
The objection taken to the instructions given for the plaintiff is, that they assume that the question of delivery is solely a question of fact for the jury, whereas it is a mixed question of law and fact; and that where, as in this case, the facts show no immediate, continuous or exclusive change of possession, the court should have instructed the jury that the title had not passed as to creditors....
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