William A. Jordan Et. Al. v. J. D. Easter

• Decision Date: 30 June 1878
• Citation: 2 Ill.App. 73,2 Bradw. 73
• Parties: WILLIAM A. JORDAN ET. AL.v.J. D. EASTER ET AL.
• Court: United States Appellate Court of Illinois

2 Ill.App. 73

2 Bradw. 73

WILLIAM A. JORDAN ET. AL.

v.J. D. EASTER ET AL.

Appellate Court of Illinois, Second District.

June Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Grundy county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

Messrs. HILL & DIBELL, for appellants; argued that where personal property is sold with a reservation of ownership or title in the vendor, the sale is void as against third parties, and cited Hervey v. R. I. Locomotive Works, 93 U. S. 664; Murch v. Wright, 46 Ill. 487; McCormick v. Hadden, 37 Ill. 370; Ketcham v. Watson, 24 Ill. 591; Morris v. Grover, 2 Scam. 528; Butters v. Haughwort, 42 Ill. 18; 1 Parsons on Con. 537.

Messrs. GARNSEY & KNOX, for appellees; contending that the title remained in appellees, and appellants could not dispose of the machines so as to prejudice their rights, cited Potter v. Dennison, 15 Gilm. 590; 2 Kent, 625; Story on Agency, § 225; Paley on Agency, § 340; 8 East. 13.

That the settlement and giving of the notes did not waive their right to re-take the property: Murch v. Wright, 46 Ill. 487; Brundage v. Camp, 21 Ill. 330; W. U. R. R. Co. v. Wagner, 65 Ill. 197.

The assignment by appellants did not divest appellees of their right to the machines, the assignees taking only the title of appellants therein: O'Harra v. Jones, 43 Ill. 288; Stow v. Yarwood et al. 20 Ill. 498; Dole et al. v. Olmstead et al. 41 Ill. 344; Goodwin et al. v. Mix et al. 38 Ill. 115; Reed v. Sands, 37 Barb. 185; Griffin v. Marguardt, 17 N. Y. 28; Harris v. Pratt, 17 N. Y. 249; In re Howe, 1 Paige Ch. 125.

That parol evidence in relation to the settlement should not have been admitted to vary the written instruments: Hartford Ins. Co. v. Webster, 69 Ill. 392; Snyder v. Griswold, 37 Ill. 216; Harlem v. Boswell, 15 Ill. 56; Abrams v. Pomeroy, 13 Ill. 133; Broadwell v. Broadwell, 1 Gilm. 599; Lane v. Sharpe, 3 Scam. 567.

SIBLEY, P. J.

This action comes up by way of appeal from the Circuit Court of Grundy county, where J. D. Easter & Co. recovered in replevin of the appellants seven Marsh harvesters. These harvesters were among others delivered to Jordan, upon a contract executed by him and the appellees, Nov. 7th, 1874, by the terms of which they were to be shipped by Easter & Co. to Jordan, between the 1st of January and July, 1875. In this contract, Jordan guaranteed the sale of the machines, for which he was to have a certain sum for selling; and in case he failed to make sale, Easter & Co. could require him to take and pay for them himself, by note, to become due the 1st of August, 1876, or otherwise; the machines to remain the property of Easter & Co. until paid for in cash, or farmers' notes. Eight of these machines, which were received by Jordan in the spring of 1875, were on hand Sept. 18th, 1876, when the agent of Easter & Co. called on Jordan and adjusted the matter of business then existing between the parties. Upon this settlement, four notes for $300 each, payable on the 1st of August, 1876, were given by Jordan to Easter & Co. for the eight machines not sold. Attached to these notes was this memorandum:

“The undersigned hereby waives all benefit of exemption laws, and all relief from stay of execution, valuation or appraisement laws, and agrees to pay an attorney's fee equal to ten per cent. of face of note, to be entered up as part of judgment if this note is to be collected by suit. This note is given upon the purchase of a Marsh harvester, on the express condition that the title or ownership does not pass from J. D. Easter & Co. until this note and interest is paid in full; and the said J. D. Easter & Co., or their assigns, are hereby fully authorized and empowered to declare this note due any time they deem themselves insecure, even before the maturity of the note, and proceed to collect the note, and if they so elect, take possession of said Marsh harvester.”

At that time there was also executed by Easter & Co. the following receipt:

“OFFICE OF W. A. JORDAN,

Grundy county Agricultural Warehouse, Washington St.,

MORRIS, ILL., SEPT. 18th, 1875.

$1,200.

Rec'd of W. A. Jordan four certain notes, of even date herewith, for the sum of twelve hundred dollars, being for eight Marsh Harvesters in hand; and we hereby agree that should we reduce the wholesale price for the season of 1876, that we will endorse upon said notes an amount equal to such reduction in price, provided that we may, at our option, take said machines, in good order, free of charge, except freight, upon the surrender of said notes given for the machines.

J. D. EASTER & CO.

By CLOSE.”

Jordan, after the execution of these notes and the receipt, prior to Oct. 11th, 1876, sold one of them, and appropriated the proceeds. On the latter date Jordan made an assignment of all his property to Conrad Furst, Wm. C. Downey and Hugh Hamilton, for the benefit of his creditors. Afterwards, on the 10th of Oct., 1876, the creditors of Jordan, including Easter & Co., held a meeting and entered into this agreement:

“At a meeting of the creditors of Wm. A. Jordan, of Morris, Grundy county, Ill., held this day, in said city of Morris, pursuant to a call made by Conrad Furst, Wm. C. Downey, and Hugh M. Hamilton, assignees, to whom the said Jordan has heretofore conveyed all his property for the benefit of his creditors, it was unanimously resolved that the said Wm. A. Jordan be employed by the said assignees to take charge of all the assigned property, and assets, and proceed to sell and convert the same into money, under the supervision and direction of the assignees, who shall distribute the same under said assignment: On condition that the said Jordan shall accept such agency and agree to act in that capacity, without charge or expense to the assignees, and the said Jordan having signified his acceptance of such employment, and the conditions attached thereto; now, therefore, in consideration of these premises, we, the undersigned creditors of the said Jordan, whose names are hereunto subscribed, consent to and accept the arrangement proposed by said resolution, in full satisfaction of all our claims against the said Wm. A. Jordan, it being expressly understood that we do not intend hereby to release any claim which we, or any of us may have, to goods committed by us to the said Jordan for sale on commission. Witness our hands, this 25th day of Oct. A. D. 1876.”

The right of the appellees to recover these machines, depends principally upon the construction to be given to these written instruments.

Although it is assigned for error, that the court below refused to allow the witness, Jordan, to testify as to what took place between him and the agent of Easter & Co., in respect to the settlement of 18th Sept., 1875, and a majority of the court is of the opinion that he ought to have been permitted to answer the questions, since the written memorandum only related to the sale, and the condition of the title until payment made, many other facts surrounding the transaction, not intended to vary the contents of the written instruments, were proper to be proven by oral testimony. But it is quite clear that he should have been allowed to answer the question, “Whether or not at the time of the assignment he had any property in consignment for sale on commission.” Jordan was...