Yockey v. Smith

• Decision Date: 19 October 1899
• Citation: 54 N.E. 1048,181 Ill. 564
• Parties: YOCKEY v. SMITH.
• Court: Illinois Supreme Court

181 Ill. 564

54 N.E. 1048

YOCKEY

v.SMITH.

Supreme Court of Illinois.

Oct. 19, 1899.

Appeal from appellate court, Second district.

Replevin by Charles P. Smith against Charles J. Yockey. From a judgment of the appellate court affirming a judgment for plaintiff (81 Ill. App. 556), defendant appeals. Affirmed.Widmer & Widmer (Henry Mayo and Butters, Carr & Gleim, of counsel), for appellant.

Charles S. Cullen, for appellee.

This was an action of replevin brought by appellee against appellant to recover the possession of 4,955 bushels of corn and 211 bushels of oats, which had been stored by appellee in the elevators of Robert T. Harrington, at Marseilles, Ill., and which had been levied upon and seized by appellant, as sheriff, under an execution against Harrington. The declaration contained counts in the cepit and detinet, and, the grain not having been found, there was a count in trover. Appellant pleaded non cepit, non detinet, not guilty, and property in Robert. T. Harrington, and also a special plea justifying the taking and detention by virtue of an execution against Robert T. Harrington in favor of the First National Bank of Marseilles, Ill., and alleging the property of the grain to be in Harrington, and not in plaintiff. Issues were joined on these pleas and a traverse of the special plea. The cause was tried by a jury, who returned a verdict finding appellant guilty, and assessing appellee's damages at $1,241.06. The court overruled a motion for a new trial, and entered judgment on the verdict, which, on appeal, was affirmed in the appellate court.

CRAIG, J. (after stating the facts).

It appears from the testimony introduced on the trial that Harrington was a grain dealer at Marseilles. He bought, shipped, and sold grain on his own account, and received grain in store from farmers in his elevators. He operated two elevators, one known as the Harrington or Railroad elevator, and the other as the Schroeder elevator. Appellee, being the owner of about 3,000 bushels of oats and 5,000 bushels of corn, hauled and stored it in the elevators operated by Harrington, under an agreement, as the evidence tends to show and as the appellate court found, that it was to remain his grain, subject to his own order, until such time as he saw fit to sell, but the agreement provided that appellee should pay one-quarter of a cent per bushel per month after the 1st day of November, if left until that time. The grain was delivered from time to time, commencing in June and ending September 29, 1897. In July 2,700 bushels of the oats were sold to Harrington, but the balance of the grain remained in store. The execution upon which appellant seized the grain came into his hands on October 1, 1897, and was levied the next day. The property was sold, and the proceeds applied in satisfaction of the execution and other executions which appellant had received against Harrington, October 1 and 2, 1897.

Under the facts, the question presented is whether the grain in question was the property of Harrington, and, as such, liable to be taken and sold under execution against him, or whether it was the property of appellee. Section 1 of article 13 of the constitution declares: ‘All elevators or storehouses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public warehouses.’ The appellate court found as a fact that the grain in question was stored under a contract, under which appellee was to pay, as compensation for storage, a certain amount per bushel after November 1, 1897, and this finding, in connection with the evidence showing the time and manner in which Harrington had been engaged in the grain and warehouse business, establishes as a fact that the warehouses kept by Harrington were public warehouses, within the meaning of the constitution and the statute of July 1, 1871 (Hurd's Rev. St. 1897, c. 114), and that the grain of appellee was received by Harrington as a public warehouseman. If Harrington received the grain as a public warehouseman, the title to the property did not pass to him, but remained in appellee, and it could not be taken and sold for Harrington's debts. In Bank v. Meadowcroft, 95 Ill. 124, where a similarquestion was involved, it was held that where grain is consigned to a public warehouse, and is there stored in bins, mingled with other grain of like character and grade belonging to different persons, so that its identity...