William Owens * v. Weedman

• Decision Date: 31 January 1876
• Citation: William Owens * v. Weedman, 82 Ill. 409, 1876 WL 10220 (Ill. 1876)
• Parties: WILLIAM OWENS et al.*v.JOHN WEEDMAN.
• Court: Illinois Supreme Court

82 Ill. 409

1876 WL 10220 (Ill.)

WILLIAM OWENS et al.*

v.JOHN WEEDMAN.

Supreme Court of Illinois.

January Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of DeWitt county.

This was an action of trover, by Weedman against Owens and Drybread.The plaintiff, in his declaration, alleged, in substance, that he was lawfully possessed, as of his own property, of 150 hogs, and lost them, and the same came into the possession of defendants, and that they converted them to their own use.Defendants pleaded not guilty, and on trial a verdict of guilty was rendered, and the plaintiff's damages assessed at $550. for which judgment was entered against the defendants, and from this judgment they appeal to this court.A motion for a new trial was made by defendants and overruled, and defendants excepted.All the evidence is preserved by bill of exceptions.

At the trial Weedman testified, in substance: “I am a resident of McLean county.My business is farming and feeding stock.I have an interest in the bank, and also in a flouring mill.About May 13, 1873, I met Owens in Farmer City, by the bank.He wanted to sell me some hogs.He said he had bought about 90 head, and wished to sell them to me.I inquired his price, and he said he paid $4.40 to $4.50.We made a trade.I told him that 90 head were too many for one load and not enough for two, and I did not want to buy the whole 90 hogs unless he would furnish me enough to make the two car loads.He said that he could buy them, and I told him I would take the hogs at the price he set, and he was to go on and furnish the two car loads.He thought they would weigh about 200 pounds.I thought it would take about 70 to the load.This was Tuesday or Wednesday.I gave him until Friday to get the hogs in.He said he could buy some hogs of Watson, and I gave him $20 to pay on those hogs of Watson's.I agreed to give him $15 for his labor in getting up the balance to make out two car loads.The conversation was: I told him I did not want to do the work.He said he could buy the hogs, and thought likely he could buy them for less money.I considered $4.50 a big price, and told him not to go beyond $4.50--that I would give him $15 to buy the hogs and load them.I went then and ordered two cars for Friday.As to getting the rest of the hogs in, he said he could not get them in Thursday, but would have them in by Friday.The hogs were to be weighed at McLain's, except some that he thought would have to be weighed at Argobast's.Further than what was said about the $20 to pay Watson, nothing was said about money in any shape, to pay on those hogs.I don't recollect that I saw Owens any further at all.I think the next day he told me what hogs he had bought, and that he would have them in on Friday morning.”

Weedman further testified, that on Friday he came to town, about 11 o'clock in the forenoon; went first to the bank; inquired for Owens, but he was not there.He afterwards went to the yards to find Owens.He was not there.He says he found about 90 hogs there, but did not learn where Owens was, though he made inquiries of three or four persons.He testifies that he waited about the bank until about 2 o'clock, then rode to the depot to seek Owens, and remained until about 3 o'clock, and then went down to the bank, and while there paid one of Owens' checks, and told Lewis, the clerk at the bank, to pay no more of Owens' checks, and said to Lewis, he would be down in the morning and tend to the hogs himself, as it was then too late to ship the hogs that evening.He left no message for Owens.He merely told Lewis not to pay Owens' checks.Weedman adds: “I expected to get the hogs in, and when delivered to pay for them.”He then went home, and did not return the next day, but on the next day (some of his family being ill)he sent a messenger (Mr. Houston) to Owens, “to ship one load of hogs (I told him to bill them to Conover & Hall), and to hold the others until I came down--to hold the lighter hogs and ship the heavier ones.”Houston, when he returned, told me Owens was out of humor--that he said, “he would manage that thing to suit himself,” and got upon the train, and said: “If John's folks are sick, tell him we will do what is right about the hogs.”

Weedman further testified, that he“paid on the hogs $730.55.”He further testified, that “Owens was not worth anything financially, although I had trusted Owens before with money, and he had bought stock for me.I gave Lewis instructions on Thursday evening, that if I did not come down in time, if any of these hogs came in, to pay for them until I came down.There was nothing passed between Owens and myself at all, in reference to the payment for the hogs.I paid out on these hogs $730.55, and never got anything out of them.”

On cross-examination Weedman testified: “I told Owens I would not buy the hogs he had bought unless he would buy enough for two loads, and then he agreed to buy two car loads.I was to pay him $15 in addition to what the hogs cost.I made this contract on Wednesday, and the hogs were to be delivered on Friday.The bigger portion of them were to be delivered at McLain's scales, and a portion of them, he thought, he would have to weigh out at Argobast's.I consented to it.I was to receive the hogs at McLain's scales.On the day the hogs were to be delivered, I was at home in the morning, and at the scales about 11 o'clock.It was the calculation that I was to pay for the hogs on delivery.I think nothing was said about it.I did not tender to Owens any money for these hogs, nor authorize any one to do so.I did not know but what Owens had made arrangements with the farmers.We frequently make arrangements not to pay for hogs until we ship them.I should say that Owens could not raise the money to pay for the hogs unless some one let him have money, or made some arrangements with him some way.The hogs were shipped Saturday evening.”

Lewis, the clerk in the bank, testifies that he was present when Weedman and Owens made their bargain about the hogs.He swears: “Mr. Weedman bought the hogs of Owens, what he had on hand, and objected to the amount on the score that it was neither one or two car loads, and said he did not care about them unless Owens made up two car loads, which Owens agreed to do.I understood he was to have $15 for his services.I understood the $15 was a bonus over and above the price of the hogs.It was for buying the hogs.The hogs were to come in on Friday.Owens came in on Thursday, and wanted me to pay his checks.I told him I could not do it--that I had no instructions from any one to pay his checks.I believe I did not give Owens any reason, but that was my reason for refusing.On Thursday evening I saw Mr. Weedman, and asked him if it would be right to pay Owens' checks.He told me, yes, to go on and pay until he came down.These checks were to be in payment for the hogs--to the parties to whom Owens gave them for payment for the hogs--John Weedman's hogs--hogs that John Weedman had bought of Owens.On Friday evening, after Weedman had told me not to pay any more checks until he came back.I had paid out $710.55, including one check which I did not pay.When I told Owens, on Friday evening, that Weedman had directed me not to pay any more checks until he came down, Owens said he thought that was a great way to do business--that the men were there waiting for their money for their hogs.”

On cross-examination he said, that the money he paid on Owens' checks was charged to Owens on the bank books, and was afterwards charged to Mr. Weedman.The idea was, that the checks were to be charged to Owens for the time being, and as soon as Owens and Weedman settled, Weedman would give his own check for the amount.That was the understanding with Weedman and myself.We had a talk about it.For the time being, Owens was to check and I was to pay his checks.After the transaction was over, and it was settled for, Weedman was to take these up and give his check for the amount.That was the agreement between Weedman and me, but as the thing terminated as it did, it was carried for some time against Owens, but it was afterwards charged to Weedman by the bank.

Houston testified, that on Saturday, at Weedman's house, Weedman told me to go down and tell Owens that his family was so that he could not leave, and to ship a car load of hogs, 15,500 pounds in a car, and he would make it all right when he came down.I went down and told Owens, and Owens said: “I am going to ship them hogs.”Mr. Drybread spoke up, and said he was going to ship the hogs; that he was going with Owens; that he was interested in the hogs.When I first saw Owens the hogs were not in the car, but were in the pen.I went on and sent the doctor out, and when I got back the hogs were all in the cars.It was afternoon when I first got there.I told Owens to bill the hogs to Conover & Hall, but I suppose the hogs were already billed.

Being cross-examined, witness said: When Weedman sent me down there, he said “he had bought two car loads of hogs of Owens--he had contracted two car loads of hogs of Owens; that there was to be two car loads of hogs in there.”

On re-direct, he said, Weedman told me he had two car loads of hogs to go from Farmer City that evening.He said he had employed Owens to buy him two car loads of hogs, and he was to ship them that evening.

On cross-examination, witness said he did not remember whether or not he had, at first, testified that Weedman said “he had bought two car loads of hogs of Owens.”

Testimony was also given, in behalf of plaintiff, that these two car loads of hogs were shipped on Saturday evening by Owens and Drybread, in their names, to Chicago, with the consent of those farmers who had let Owens have hogs, which were not paid for; and that these hogs were sold in Chicago for over $1100, and that Drybread received some $800 of the money, and, in a conversation had with Owens after his return,...