Union Stock Yard & Transit Co. v. Mallory, Son & Zimmerman Co.

• Decision Date: 11 October 1895
• Citation: 157 Ill. 554,41 N.E. 888
• Court: Illinois Supreme Court
• Parties: UNION STOCK YARD & TRANSIT CO. v. MALLORY, SON & ZIMMERMAN CO.

157 Ill. 554

41 N.E. 888

UNION STOCK YARD & TRANSIT CO.

v.MALLORY, SON & ZIMMERMAN CO.¹

Supreme Court of Illinois.

Oct. 11, 1895.

Appeal from appellate court, First district.

Action of trover by Mallory, Son & Zimmerman Company against the Union Stock-Yard & Transit Company. Plaintiff obtained judgment, which was affirmed by the appellate court. 54 Ill. App. 170. Defendant appeals. Reversed.Winston & Meagher, for appellant.

Peck, Miller & Starr, for appellee.

Samuel Fleischman, for a year or two prior to May 14, 1890, was a cattle buyer at the Union Stock Yards in Chicago. He did an extensive business, chiefly in acting as buyer or agent for butchers and cattle dealers who resided outside the city of Chicago. One of the persons for whom he so acted was a Walter Bussell, of Detroit. The business was conducted about as follows: Bussell would notify Fleischman by letter or wire when he desired cattle. Fleischman would go into the yards, pick out such cattle as, in his opinion, suited the requirements of his principal, negotiate with the commission man to whom the cattle desired by Fleischman had been consigned, and, if the price of the cattle was satisfactorily arranged, buy them. Thereupon the commission man and Fleischman would go to the weighmaster of the stock-yard company, by whom was made out a scale ticket, giving the number and weight of the cattle, from whom purchased, to whom weighed, and containing other memoranda respecting the sale, which was delivered to the seller. The scale ticket was then taken by the seller to his office, and the price of the cattle sold being paid by the buyer or agent, or a credit given for the price thereof, the seller gave to the buyer an order upon the stock-yard company to deliver the cattle so sold. Upon presentation of this order to the stock-yard company, or its employés in charge of deliveries of cattle, the cattle mentioned in the order were turned over to the buyer or agent, for shipment or other disposition, as will be mentioned later. Fleischman had acted as the agent of Bussell in the purchase of cattle in the way described for a period of something over one year, and less than two years; say 15 to 18 months prior to May 14, 1890. During this time he also purchased cattle for other nonresident butchers and cattle dealers,-notably, N. Phillips and L. Fleischman. On May 13, 1890, Bussell, at Detroit, telegraphed to Fleischman, at Chicago, to buy him (Bussell) ‘a load of cattle, if just right; if they are my kind, and come right.’ On the morning of May 14, 1890, Fleischman told Mr. Zimmerman, of the plaintiff company, that he had an order from Bussell for cattle; and between 9 and 10 o'clock on that day the plaintiff, acting through Mr. Zimmerman, sold to Fleischman 27 head of cattle, and delivered to Fleischman an order as follows:

‘Chicago, May 14, 1890. Union Stock-Yard & Transit Co.: Please deliver to _____ Bussell 27 cattle, _____ hogs, _____ sheep. Block _____, pen _____, division D, scale 5. Mallory, Son & Zimmerman Co., per Wm. Buhlman.’

Fleischman took the order, and later in the day sold the cattle mentioned therein to Holmes & Pattison, a commission firm doing business at the stock yards, and going to the scales used in connection with the block and pen where the cattle were, with a representative of the firm of Holmes & Pattison, indorsed the order as follows:

‘To Holmes & Pattison. Bussell. S. Fleischman.’

Thereupon the 27 cattle mentioned in the order were delivered to Holmes & Pattison by the stock-yard company.

On the next day the officers of the plaintiff company heard rumors to the effect that Fleischman had run away, and thereupon Mr. Zimmerman and Mr. Mallory, officers of appellee company, went to the Transit House, where Fleischman lived, for the purpose of learning ‘whether he was going to pay for the cattle,’ but did not succeed in finding him there; nor, indeed, so far as appears, did they ever find him. Nor finding Fleischman at the Transit House, the plaintiff company made out and forwarded the following bill and letter to Mr. Bussell, at Detroit:

‘U. S. Yards, Ill., 5/14, 1890.

‘Offlce of Mallory, Son & Zimmerman Co.

‘Sold Wm. Bussell:

+------------------------------------------------------+
                ¦Date.¦Cattle.¦Hogs.¦Sheep.¦Weight.¦Off. Price.¦Amount.¦
                +-----+-------+-----+------+-------+-----------+-------¦
                ¦5-14 ¦6      ¦     ¦      ¦6,150  ¦3.10       ¦$190 65¦
                +-----+-------+-----+------+-------+-----------+-------¦
                ¦     ¦3      ¦     ¦      ¦3,170  ¦3 1/4      ¦103 02 ¦
                +-----+-------+-----+------+-------+-----------+-------¦
                ¦     ¦2      ¦     ¦      ¦2,250  ¦4c.        ¦90 00  ¦
                +-----+-------+-----+------+-------+-----------+-------¦
                ¦     ¦9      ¦     ¦      ¦7,580  ¦3.65       ¦276 67 ¦
                +-----+-------+-----+------+-------+-----------+-------¦
                ¦     ¦3      ¦     ¦      ¦1,500  ¦3c.        ¦45 00  ¦
                +-----+-------+-----+------+-------+-----------+-------¦
                ¦     ¦3      ¦     ¦      ¦3,200  ¦3.40       ¦108 80 ¦
                +-----+-------+-----+------+-------+-----------+-------¦
                ¦     ¦1      ¦     ¦      ¦950    ¦3.40       ¦32 64  ¦
                +-----+-------+-----+------+-------+-----------+-------¦
                ¦     ¦27     ¦     ¦      ¦       ¦           ¦$846 78¦
                +------------------------------------------------------+
                

‘Dear Sir: We sold the above cattle to S. Fleischman, for your acct., on the date as above, but have not rec'd payment for same. Please remit at once, and oblige. Yours, resp'y, Mallory, Son & Zimmerman Co., per Bryant.’

The first thing Bussell appears to have done, on receiving this communication, was to consult an attorney, who replied as follows:

‘Detroit, May 27, 1890. Messrs. Mallory, Son & Zimmerman Company, Union Stock-Yards, Chicago-Gentlemen: In reply to your favor of the 14th inst. to Walter Bussell, he wishes me to say that he has neither ordered nor received from Mr. Fleischman the bill of cattle covered by your memorandum, nor anything like it, and he therefore will decline to pay the account. Fieischman must have bought that lot for some one else, or, at all events, turned them over to some one else. Yours, very truly, W. M. Lilliebridge.’

The next step taken by the plaintiff company was to forward to the stock-yard company the following communication:

‘Mallory, Son & Zimmerman Company. (Incorporated.) Established 1862. Live-Stock Commission Merchants. Union Stock Yards, Ill., May 23, 1890. Union Stock-Yard & Transit Co. to Mallory, Son & Zimmerman Co., Dr.: To 27 cattle, as per bill attached, $846.78. These cattle were sold to S. Fleischman, May 14th, for account of Wm. Bussell, Detroit, and we gave the order to Wm. Bussell direct. Your employés delivered the cattle to other parties, and, as Mr. Bussell did not get the cattle, he refuses to pay for them; and, as you delivered the cattle to others than Wm. Bussell, we look to you for the amount. Please adjust the same at once, and oblige. Mallory, Son & Zimmerman Co., per C. A. Mallory, Treas.’

The bill mentioned in the letter was the same as that above set forth in the letter of May 14th to Bussell.

The following reply was thereupon made by the defendant company (appellant in this court):

‘The Union Stock-Yard and Transit Company of Chicago. Jas. H. Ashby, General Superintendent. Union Stock Yards, Chicago, May 24th, 1890. Mallory, Son & Zimmerman Co., Union Stock Yards, City-Gentlemen: Referring to your claim of $846.78, under date of the 23rd instant, account of alleged wrong delivery of cattle by the employés of this company, would say that I find, upon examination of your order, that these cattle were properly delivered on it, as directed, and consequently we can assume no responsibility in the matter. Very respectifully, James H. Ashby, General Superintendent.’

Subsequently, and on June 18, 1890, formal demand for the possession of the 27 cattle was made by the plaintiff company upon the defendant company, and at a later period an action of trover for the conversion of the 27 cattle was commenced by the appellee against the appellant, and proceeded to judgment for $1,004.25, being the sum for which the 27 cattle were sold, and interest thereon from the date of sale to the date of trial, and from that judgment the stock-yard company has appealed, first to the appellate court for the First district, and, on the affirmance there of the judgment of the court below, to this court.

MAGRUDER, J. (after stating the facts).

This is an action of trover brought by the appellee, Mallory, Son & Zimmerman Company, an incorporated company of live-stock commission merchants doing business at the stock yards in the city of Chicago, against the appellant, the Union Stock-Yard & Transit Company, to recover the value of 27 head of cattle alleged to have been converted by the appellant. In an action of trover, which is a possessory action, the plaintiffmust recover upon the strength of his own title, and not upon the weakness of his adversary's title; and he must show, not only a tortious conversion of the personal property by the defendant, but also that at the time of the alleged conversion he had the right of property, general or special, in the chattels converted, and also the possession, or a right to the immediate possession, thereof. There must be a concurrence both of the right of property, general or special, and of the actual possession, or the right to immediate possession, and this concurrence must exist at the time of the conversion. Davidson v. Waldron, 31 Ill. 120;Forth v. Pursley, 82 Ill. 152; Owens v. Weedman, Id. 409; Montgomery v. Brush, 121 Ill. 513, 13 N. E. 230;Frink v. Pratt, 130 Ill. 327, 22 N. E. 819; 26 Am. & Eng. Enc. Law, p. 744. There is evidence in the record tending to show that the title to the cattle had passed out of appellee when the alleged conversion took place, and that both the right of property and the right of possession were in Bussell when the cattle were delivered by appellant to Fleischman, or to Holmes & Pattison at Fleischman's...