text:
    The American Buttonhole, Overseaming and Sewing Machine Company v. Morris Hays.

      Sales—Action for Misap>propriation of Funds—Case—Evidence.

    In an action on the case for alleged misappropriation of the proceeds of certain machines, this court, upon a review of the, evidence, sustains the finding of the court below for the defendant.
    [Opinion filed May 25, 1889.]

      Appeal from the Circuit Court of Warren County; the Hon. John C. Bagby, Judge, presiding.
    Mr. I. M. Kirkpatrick, for appellant.
    Messrs. Porter & McDill, for appellee.
   Upton, J.

This is an action in case for an alleged misappropriation of sewing machines, moneys, notes and other property claimed as the property of the plaintiff.

The facts in the case, in brief, are, that prior to the 6th of October, 1886, the defendant was indebted to the plaintiff in the sum of about §324.35, for serving machines, before that time sold and delivered to the defendant.

The defendant desiring to engage in other business, met the agent of the plaintiff on that day at Monmouth, defendant’s place of business, to settle and adjust such indebtedness.

It is claimed by the defendant that he was anxious to pay up the notes which .were then outstanding against him, given for these sewing machines, and which he supposed were then in plaintiff’s possession, and satisfy plaintiff’s claim against him, and to that end he proposed that if the plaintiff return- and deliver up to him those notes, the defendant would transfer to the plaintiff the sewing machines then in his possession^ about twelve in number, at a certain price which was agreed upon, amounting in the aggregate to the sum of §278, which would leave a balance due to plaintiff of §46.35, and which balance was to be paid by defendant, and that upon the delivery of said notes the machines should become the property of plaintiff, and the defendant would then proceed and sell the machines as the agent of the plaintiff, and account with it for the proceeds of such sales, the defendant receiving as compensation for services in making such sales all he could obtain over a certain sum named, being the original cost price of the machines in Chicago.

The defendant also claimed that the notes were never given up or delivered to him, or to any one in his behalf, but that plaintiff still keeps, and now has in its possession, said notes, and the said proposition was never accepted or complied with by the plaintiff, and hence the machines remained the property of the defendant, and he is not liable in this form of action to the plaintiff.

The plaintiff claims that the sewing machines were in fact sold to and purchased by it on the 6th of October, 1886, of the defendant, at and for the price above stated, and that it left the said machines so purchased, as they were at the time of purchase, in defendant’s hands and possession, as the consignee of the plaintiff, and that the sale was unconditional, and that defendant has sold the most of the said machines, and has misappropriated the machines and the proceeds of those sold.

In the Circuit Court on the trial of this case a jury was waived and the case was tried by the court, and, upon a hearing, judgment was rendered for the defendant, appellee. Ho requests were made by either party for special findings on questions of law, and the whole contention, therefore, rests upon questions of fact, which were found in the Circuit Court to be in accord with the defendant’s claim. The evidence was sharply conflicting as to the effect and time of the contract of October 6, 1886, upon which the whole contention in the case rests.

It is, however, an uncontroverted fact in the case that the plaintiff did not return the notes given by defendant, as he proposed on the 6th of October, but did in fact, on the trial of this case in the court below, tender the same there, and then offered to surrender-the notes to the defendant.

In addition to this, from correspondence between the parties and the statement of the accounts claimed by plaintiff to be still existing after the 6th of October, 1886, the date of the claimed settlement and sale of the machines to the plaintiff, these notes were claimed as still due from the defendant, and payment was demanded on the account, including the original purchase of these machines, making no claim that the plaintiff was the owner of the machines or was entitled to the proceeds of the sale thereof. Tn this entire correspondence the plaintiff demanded payment on the original claim, contracted long prior to the 6th of October, 1886, and treated the relation between the company and the defendant as that of debtor and creditor, at least until July 13, 1887, at which time it demanded payment of the account rendered for the original, sale of the machines, and giving no credit therein for the twelve machines now claimed to have been sold to it in liquidation of that account, as before stated. This was inconsistent with the contention of the plaintiff, and more than this, Mr. Wonder, an uncle of the defendant, called as a witness, testified that he was present at the time of the claimed sale of the machines to plaintiff, October 6, 1886, and his testimony tends strongly to support that of the defendant, as well as the subsequent acts and correspondence of plaintiff’s agents, herein-before referred to.

We can not, therefore, say there was not sufficient evidence to support the finding and judgment of the Circuit Court, but, on the contrary, we are of the opinion that the Circuit Court was fully warranted by the evidence in its finding, and the judgment thereon rendered, and that judgment must be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Upton, J.

license: Public Domain

text:
    Jessie Miller v. Daniel Gable.

      Tresvass—Cattle—Replevin—Tender by Owner for Injury Done—See. 6, Chap. 135, R. S.—Practice.

    1. The taker of cattle found trespassing, who pleads non cepit and non detinet to a declaration, in an action of replevin brought for their recovery, setting up that the same were wrongfully taken and detained, concedes their ownership to be in the person bringing the same,
    2. A plea of tender, under Sec. 6, Chap. 135, R. S., admits liability for the injury complained of.
    3. When it is sought to arrest a judgment not responsive to the issues joined, a motion to that end should be made in, and determined by, the trial court.

      4. In an action based upon an injury done by trespassing cattle", their owner having tendered amends before the suit brought, this court declines to interfere with the verdict in his behalf.
    5. Where the parties have been equally at fault in making immaterial issues and asking instructions thereon, neither can complain.
    [Opinion filed May 25, 1889.]
    Appeal from tlie Circuit Court of Stephenson County; the Hon. John D. Crabtree, Judge, presiding.
    Mr. J. A. Crain, for appellant.
    Messrs. James I. Neff and J. H. Stearns, for appellee.
   Upton, J.

The appellee and appellant were lessee and owner in possession of adjoining pasture lands, along the dividing line of which was a fence.

The appellant found appellee’s cattle depasturing his land, and took them damage feasant, whereupon appellee replevied his cattle, and declared against the appellant in such action on two counts, the one for the wrongful taking, the other for the wrongful detention of twenty-one head of cattle, the property of appellee. To these counts appellant pleaded respectively non cepit and non detinet, and issue was joined thereon. Appellant also justified the taking and detention of said cattle damage feasant in eight several avowances, upon which issues were joined. Replication thereto was made by appellee, stating matters in confession and avoidance not necessary to be here stated particularly, among which said-replications was pleaded a tender of amends in the sum of §5 before suit brought, etc., pursuant to the statute, etc., and issue was joined thereon.

By the 6th section of Chap. 135, title “ Tender,” it is enacted: Whoever is guilty of a trespass or injury may at any time before or after suit brought,' tender what he shall conceive sufficient amends for the injury done, and if suit has been commenced, also the costs of suit up to the time of such tender, and if it shall appear that the sum tendered was suffieient amends for the injury done, and, if suit has been commenced, was also sufficient to pay such costs, the plaintiff shall not be allowed to recover any costs incurred after such tender, but shall be liable to the defendant for his costs incurred after that time,” etc.

By this plea of tender, appellee admitted of record the issue of facts set up and pleaded by the appellant in his several avowries, and that he, appellee, was liable for the trespass complained of, and that his cattle were lawfully taken and held damage feasant, through his, appellee’s, fault and wrong.

The only issue in the case, then, remaining for the jury, was the fact and sufficiency of the tender pleaded, and in case it should be found insufficient, then to assess and determine the amount of the damages sustained for the trespass so confessed, if any should be shown by the evidence. Monroe v. Chaldick, 78 Ill. 432; Beach v. Jeffrey, 1 Ill. App. 283.

The appellee’s right of property in the cattle was conceded and admitted of record by appellant’s pleas, noncepit and non detvnet, filed in the case. Van Namee v. Bradley, 69 Ill. 299. Hence, the fact of the alleged tender and its sufficiency, was the only remaining issue for the jury to pass upon.

The questions made upon the form of the instructions complained of, and those as to the admission of improper, and refusal to admit proper evidence, do not arise in the case under the pleadings. The only one, as we have seen, was that of damages for the confessed trespass of appellee’s cattle, and the verdict of the jury was fully responsive to that issue.

Upon this issue the jury found for the appellee, on his replication of tender of sufficient amends before suit brought, as, by the evidence, they were fully justified in finding. This finding by the jury that appellant wrongfully detained the cattle of appellee, necessarily found the issue on the tender and its sufficiency in favor of the appellee. And the money so tendered having been paid into the trial court, by its order, for appellant, where the same now remains in said court for him, the tender was perfected. Of the making of this order by the court below neither party complained. The appellant made no motion in arrest of judgment in the trial court.

The propei- practice is, when a judgment is sought to be arrested for the reason that the verdict of the jury is not responsive to the issues joined, a motion in arrest should be made in the trial court, and be determined by that court. Dole v. Kennedy, 38 Ill. 283.

Appellant and appellee were equally at fault in the making of immaterial issues in the case, and asking instructions thereon, and if either the one or the other, or both, were in any manner damaged thereby, they can not now be heard to complain.

Upon the question of fact submitted to the jury, the sufficiency of amends tendered, we think the evidence fairly preponderates in favor of the appellee, and we also think that the amount so tendered ought to have been accepted, and when so accepted, as it can be at any time, substantial justice has been done; and finding no substantial error in the proceedings in the Circuit Court, its judgment must be affirmed.

Judgment affirmed.


author: C. B. Smith, J.

text:
    Elbridge L. Otis v. Josiah M. May.

      Mortgages—Foreclosure—Fixtures—Order of Court in Vacation—See. 72, Chap. 37, Starr <& C. III. Stat.

    1. Under Sec. 72, Chap. 37, Starr & C. ILL Stat., a judge may, in the course of foreclosure proceedings, make an order in vacation directing the return of articles severed from the realty and carried away by the mortgagor.
    2. In deciding whether a chattel is a part of the realty, reference should be had to the intention of the parties as to the uses and purposes to which it is put.
    3. A chattel may become a part of the realty without being attached to the building in which it is placed.
    [Opinion filed July 1, 1889.]
    In error to the County Court of Ogle County; the Hon. William Brown, Judge, presiding.

      Mr. J. C. Garver, for plaintiff in error.
    In this case the printing presses, paper cutter and the like would hardly be called machinery. While all this property was adapted to the work carried on in the building, they could be used in the same business elsewhere, and without the building would, when separated—as also would the building without the engine, boiler and presses—maintain their relative value.
    ■ The same case holds that machines separately constructed, adapted to the work carried on in the building, but which could be used in the same business elsewhere, and which are held in position by nails, etc., and belted to the shafting, were chattels.
    The property in question was necessary to carry on the business of Otis, which was in the nature of a trade or occupation. They were equally adapted for use elsewhere. In this case, there is nothing in the mortgage indicating any of the' property in the building. Where the property, though heavy, can be moved without injury to the building, and is equally adapted elsewhere, it remains chattel property.
    In this case it must appear that the engine and boiler were intended to be permanently attached to the building as a part of it. But under no rule of law could the presses which the court turned over to the receiver, and which were merely incidental to the particular business, be held to be a part of the real estate.
    A portable furnace and gas fixtures were held not to be a part of the realty. Guthrie v. Jones, 108 Mass. 191; Lathrop v. Bishop, 23 N. H. 66.
    A portable iron furnace in a church, as between mortgagor and mortgagee, was held not to be a fixture.
    Machines are chattels, even though physically attached to the freehold, where the mode of attachment indicates that it is merely to steady them for their more convenient use. McConnell v. Blood, 123 Mass. 47; Hubbell v. East Cambridge Savings Bank, 132 Mass. 447; Maguire v. Park, 140 Mass. 21.
    Mr. M. D. Hathaway, for defendant in error.

      If anything can be settled by repeated decisions of court, then it is certain the boiler and engine and their attachments —the pumps, gauge, pipes, etc.—furnishing the motive power of this establishment, passed by the mortgage. Ewell on Fixtures, 290; Jones on Mortgages, Sec. 446; Ottumwa Woolen Mill Co. v. Hawley, 44 Iowa, 57; Taylor v. Collins, 51 Wis. 123; McConnell v. Blood, 123 Mass. 47; Jenny v. Jackson, 6 Ill. App. 32; Case Mfg. Co. v. Garver, 45 Ohio St. 289; Thielman v. Carr, 75 Ill. 392.
    With the growth and development of manufacturing establishments, and the increased use and application of machinery in the process of manufatnre, there has been a growing tendency on the part of courts to treat these establishments as entireties, and to regard the machinery which is propelled by the motive power, and necessary and essential to the business, as a part of the plant, and passing as real estate or fixtures under a deed or mortgage of the property.
    . The rule as settled and held in this State leaves no question that these presses were fixtures, and passed by the mortgage from Otis to May. Palmer v. Forbes, 23 Ill. 301.
   C. B. Smith, J.

This was a bill filed by appellee against appellant to foreclose a mortgage. Otis and his wife executed a mortgage to May on the 31st day of December, 1881, on a part of lot 5, block 7, in the city of Bochelle, for §3,000, due in five years, with interest at eight per cent, payable annually. The mortgage provided that if default should be made in the payment of the interest, or any installment thereof, then May, or his assignee, might, at his election, declare the whole amount of the mortgage, principal and interest, due, and foreclose for the same. Default was made in the payment of the interest due December 31, 1884, and May elected to declare the whole sum, principal and interest, due, and filed his bill to foreclose. A default was entered against Otis and his wife and a decree of foreclosure awarded, finding the amount due -complainant to be §3,328. In addition to that, complainant was allowed §100 for solicitor’s fees, as provided in the . mortgage. A receiver was also appointed to take possession of the property and rent it, and report to the court during the pendency of the foreclosure proceedings.

There was a one-storv brick building 60x21 feet built on the lot, and it was so built that it would be available for any kind of mercantile business, such as stores, groceries, or the like. It was located upon one of the principal business streets. Otis’ business was that of the publisher of a newspaper, as well as doing all such job work as was connected with that kind of business. After the erection of this building he equipped it as a newspaper and printing establishment, putting in an upright portable boiler and engine, and the pumps, pipes, etc., necessary to run his printing presses. He put in two printing presses and connected them with the engine and boiler by proper bands, etc. It appears the printing presses were not attached to the building in any way, simply resting on the floor by their own weight, but that foundations were built under the floor and joists'where these presses stood to support them and hold up the floor. Some of the witnesses swear that these presses were bolted to the floor, but the weight of the evidence on that point is that they simply stood on the floor above these ^special foundations made for them.

There is some controversy in the evidence as to how the boiler and engine were fastened. Appellant and a number of witnesses testify that they rested on the floor or ground, without being attached to the realty, and were kept in place by their own weight. A number of witnesses on the other side testify they were bolted to the floor and ground, and in that way held in place.

Before the receiver appointed by the court took possession of the property Otis removed the engine, boiler and printing presses and all their attachments and connections out of the building in the night time. The receiver afterward demanded possession of these articles from Otis, under his order, but Otis denied his right to have them, and refused to surrender them. An application was thereupon made in vacation to one of the judges of the Circuit Court for an order on Otis to surrender these presses, boiler, engine, etc., back into the hands of the receiver. This order was resisted by Otis and, upon a hearing before the judge in vacation, he made an order requiring Otis to return this machinery back into the hands of the receiver within five days, and upon his failure to return it, the receiver was directed to seize it and take it wherever he found it. Otis declined to deliver it, and the receiver seized it. The machinery was taken apart and put back in what was called the engine room of the building, which was a small outside room attached to the main building, surrounded by a brick wall. The receiver rented the main building for a grocery store, and it seems to have been a suitable building for that purpose, and has been so occupied since.

At the next succeeding term of the Circuit Court, Otis moved the court to set aside the vacation order, and asked to have the engine, printing presses etc., returned to him, but the court refused to allow the motion. From that order this writ of error is sued out.

The appellant assigns for error, first,' that the court had no power to make the vacation order authorizing the receiver to take from him the machinery; and, second, that the printing presses, boilers, engines, etc., were personal property, not attached to nor part of the realty, and that they did not belong to the receiver, nor did they pass by the mortgage.

These are the two questions presented for our consideration. As to the first assignment of error, we think the court had power to make the vacation order directing Otis to surrender the property up to the receiver, and, upon his failure to do so, then to require the receiver to take it wherever he might find it. The 72d section, chapter 37, of the ¡Revised Statutes (Starr & C.), empowers judges in vacation to make all such orders as may be necessary to carry into effect decrees previously entered. We think the order of the judge in this case was justified under that section of the statute.

Under the second assignment of error we think the finding and decree of the Circuit Court was right. After a careful examination of the evidence, we are satisfied that the boiler, engine, presses and paper cutter were a part of the realty, and passed with the mortgage. It is clear to our minds that the building was erected and equipped for a pointing establishment, and with the intention of running it and using it for that purpose. It was so built and fitted up, with all this machinery in it, when the mortgage was made. Without thi| machinery the building was a mere hull or shell, with but four walls. The evidence satisfies us that it was the intention of Otis when he built and equipped this building for a printing office that the machinery placed in it was to become a part of the realty and be a permanent part of the building, and we are equally satisfied that both parties to the mortgage intended the machinery to be included in the mortgage and to pass as a part of the realty. In determining whether chattels such as are involved in this controversy pass with the realty and become a part of the realty, so as to be covered by a mortgage or deed, reference is to be had as well to the intention of the parties as to the uses and purposes for which the building and the machinery is to be used.

It is not necessary that the chattel should always be fastened o.r attached ’to the realty so as to make it a part of it. Ewell on Fixtures, 290; Jones on Mortgages, Sec. 446; Jenny v. Jackson, 6 Ill. App. 32; Thielman v. Carr, 75 Ill. 392; Palmer v. Forbes, 23 Ill. 301; Arnold v. Crowder, 81 Ill. 56.

We think the evidence, under the light of the above authorities, justified the order of the Circuit Court, and that no error was committed in refusing to set it aside at a subsequent term.

Order affirmed.


text:
    Chicago and Alton Railroad Company v. Joseph Shenk.

      Railroads—Negligence—Fire—Evidence—Discretion of Court.

    1. This court will not pass upon a discretionary ruling of the trial court where the record does not show that the exercise of the discretion of the court was improper.

      2. The exclusión of the trip report of the engineer who was in charge of a locomotive which is alleged to have set fire to the plaintiff’s property can not be complained of where such person stated orally on the stand all it contained bearing upon the case.
    3. It is discretionary with the tpihl court whether to allow a witness to act as an interpreter of another witness, both appearing in behalf of the same party, where it does nut appear that the testimony was competent, or, if material, that it could not be shown by other evidence.
    [Opinion filed May 25, 1889.]
    Appeal from the Circuit Court of Grundy County; the Hon. Charles Blanchard, J udge, presiding.
    Mr. William Brown, for appellant.
    Messrs. B. Olin and William Mooney, for appellee.
   Upton, J.

This suit was brought in the Circuit Court of Grundy county, by .appellee against the appellant, to recover damages for the burning of a large quantity of hay, in the stack, belonging to appellee, then being in a field in the vicinity of the right of way of appellant, on or about the 8th of August, 1887. The declaration filed was in case and contained three counts.

The first count avers that appellant was owner of the railroad, etc., and right of way over and upon which it was constructed, of fifty feet in width on each side of its railway track, within 160 rods of appellee’s hay, grass, and machinery for baling' the same, and that it was the duty of appellantto have kept its right of way free from grass, dry grass and weeds, so that fire from its engine and locomotive in passing over its said railway would not be communicated to such dry grass, etc., and through it to the premises of appellee; but, through the neglect of its duty in that particular, fire was communicated by the passing locomotive of defendant, under the charge of its agent and servants, to said dry grass, weeds, etc., on said appellant’s right of way, and through the same to the premises om which appellee’s hay, grass and fence were standing, and consumed 290 tons of hay in the stack, seven acres of uncut grass, and one hay press feeder, the property of appellee, of the value of §2,971, the damages being $3,000.

The second count alleges that appellant, not regarding its duty in the premises, or using due care in that behalf, unlawfully suffered large quantities of dry grass and weeds and dry hay to continue and remain on the saidright of way, contrary to the statute thereby, etc.

And the third count charges that while a locomotive, under the control of appellant, was passing upon said railroad and in the vicinity of the plaintiff’s close, brands and coals of fire were then and there scattered from said locomotive, by and through the negligence of the appellant, its agents and servants, and set fire to said loose hay and dry grass upon appellant’s right of way, and therefore spread and was communicated to appellee’s premises, and his hay, grass and press were consumed, etc.

To which appellant pleaded the general issue.

The cause was submitted to a j ury for trial, who returned a verdict for appellee in the sum of $1,329 damages, upon which the Circuit Court rendered judgment, after overruling a motion for a new trial, and the cause is before us on appeal, with errors assigned upon the record that the County Court erred:

1. In admitting improper evidence for appellee.

2. In refusing proper evidence for appellant.

3. In giving appellee’s instructions.

4. In refusing appellant’s instructions.

5. In overruling appellant’s motion for a new trial.

Under the first and second error assigned above, complaint is made that certain questions propounded to the witness Oscar Carlson, called by appellee, were in fact leading, and suggestive of the answer desired, and that appellant’s objection thereto should have been sustained. But this was a matter purely in the discretion of the trial court, and from this record we are not able to say that such discretion was improperly exercised. Greenup v. Stocker, 3 Gilm. 211; Doran v. Mullen, 78 Ill. 345.

Upon the question of value of the property destroyed, complaint is made that the trial court allowed the witness James Garrigan, called by appellee, to state, in substance, that he could not tell what the hay destroyed was worth in the community at large at the time of the fire. He testified: “I bought mine a month or two after this hay had been destroyed. I paid ten dollars per ton for it then, and hauled it out of the field myself.”

If it be conceded that appellant’s objection to this evidence was well taken to its fullest extent, it would not follow that the judgment below should be reversed. This record discloses the fact that many other witnesses testified upon the trial as to the value of this particular hay, some of whom were engaged in the shipping and sale of this identical hay at the time of its destruction, or immediately previous thereto, who knew its actual market value in the vicinity of the stack, as well as in the city of Chicago, and several of those witnesses placed the value at ten dollars per ton at the time and place of its destruction. It is apparent, then, as it seems to us, that this error, if error it was, could not have been productive of injury to appellant. The same may be said in regard to the objection to the testimony of William Fitzpatrick as to the purchase of hay by him, the price he paid and from whom he purchased.

It is further claimed that the trial court erred in not allowing appellant to put in evidence the trip report of the witness Butler, the engineer having in charge the locomotive which, it is claimed, set fire to the dry hay, grass and weeds on the appellant’s right of way, made to the appellant, which the witness had before him on the trial, and consulted, as shown by the record.

This report was not of itself substantive evidence in the case. It was important in the case only as the oath of the witness who wrote it made it so, and it appears that he stated orally, on inspection of it, all it contained bearing upon this case. It is not claimed that anything of importance contained therein was not fully stated by the witness, and if so, appeb lant could not have been prejudiced by its exclusion.

It is further insisted that the trial court erred in not allowing Chi. Kein, who had been on the stand in the trial of said cause as witness for appellant, to act as interpreter of the witness John Kornoso, called by appellant, who, it was claimed, was a native of Poland, and unable to speak in the English language. It does not appear in this case, in any way, that the testimony of this witness was competent or material to the issue in the case, or, if material, could not have been fully established by other evidence in appellant’s power to produce on the hearing. ¡Nor did counsel for appellant in the court below, by statement or otherwise, indicate what fact, if any, was intended to be established by this testimony; nor was the court below asked for an allowance of time to procure another person to act as such interpreter, nor did it appear that, by the use of reasonable diligence, an acceptable interpreter could not have been procured at the trial below. The fitness and competency of the person offered to act as such interpreter rested largely in the sound discretion of the trial court, and, from this record, under the circumstances above indicated, we can not say that the court, in the ruling complained of, abused that discretion, or that the right or interest of the appellant was in the least degree affected or prejudiced thereby.

Appellant also complains that the Circuit Court overruled its motion for a new trial, as well as for the alleged misdirection of the jury in the giving and refusing of instructions on the hearing. We have carefully read and considered the whole evidence, as well the instructions given and those refused, and we think that the jury were fully justified by the evidence in finding the facts for the appellee, and in the verdict rendered; indeed the evidence would have justified a larger verdict. We find no error in tile giving and the refusal of the instructions complained of to warrant our interference with the iudgment below.

The objections to the proceedings in the Circuit Court are of the most technical character, and, in our judgment, show no substantial error, and the judgment of the Circuit Courtis affirmed.

Judgment affirmed.

C. B. Smith, J. I think the court erred in refusing to allow an interpreter to he secured for the Polish witness. I am unable to comprehend the ground of this refusal. I think the court also erred in refusing to give the second, fourteenth, seventeenth, thirty-third and thirty-fifth instructions. I think,, for this reason, the judgment ought to be reversed.


text:
    James S. Barker and Reuben L. Sidwell v. Livingston County National Bank.

      Trover—Cribs of Corn—■Instructions—Damages—Verdict—Impeachment of National Banks—Chattel Mortgage.

    1. The rule lhat the purchaser of a chattel must, in order to protect himself, take actual physical possession thereof, does not apply to property of a bulky nature which is practically irremovable.
    2. It is a sufficient notice of a change of title to cribs of corn to place notices thereon stating that the contents belong to the purchaser. Trover will lie against the purchaser from the original owner of corn from cribs on which are posted such notices.
    8. The appellant can not complain of the action of the court in giving an instruction for the adverse party similar to one asked by himself.

      4. A juror can not impeach his own verdict by declarations made after the trial which would show his disqualification as a juror, or misconduct on the trial.
    5. It seems that a national bank may take a chattel mortgage.
    [Opinion filed May 25, 1889.]
    Appeal from the County Court of Livingston County; the Hon. 1ST. J. Pillsbuey, Judge, presiding.
    Messrs. Strawn & Patton, and Strawn, Tewkesbury & Barnes, for appellants.
    Under the statute, it has been held that a chattel mortgage, not acknowledged or recorded, is binding between the parties, but void as to third persons. Gregg v. Sandford, 24 Ill. 17; Forest v. Tinkham, 29 Ill. 141; McDowell v. Stewart, 83 Ill. 538; Griffin v. Wertz, 2 Ill. App. 487.
    And such unacknowledged and unrecorded instrument is void as to third persons, though they have actual notice. Porter v. Dement, 35 Ill. 478; Sage v. Browning, 51 Ill. 217.
    And within the meaning of the statute, “third persons” are defined to be creditors, incumbrancers and purchasers. Sumner v. McKee, 89 Ill. 127.
    Under this statute, allowing the mortgaged chattel to remain in the possession of the mortgagor contrary to the terms of the deed, is fraudulent per se, as to creditors, incumbrancers and purchasers, and admits of no explanation. Funk v. Staats, 24 Ill. 632.
    As a general rule, the possession that would be sufficient to constitute a valid levy under an execution, to protect the property from third persons, is sufficient to protect mortgaged property where the possession of the mortgagee is relied upon in lieu of acknowledgment and recording under the statute, with this exception: in the case of an execution, third persons, having actual notice of the levy, are in no position to complain; but in the case of a mortgagee relying upon possession in lieu of acknowledgment and recording, the mortgage is void as to third persons unless the mortgagee had the actual possession required by law to make levy of an execution valid.
    It is settled by a long line of decisions in this State that when the possession of mortgaged property remains with the mortgagor, unless the mortgage is acknowledged, and entry thereof is made in the docket of the officer taking the acknowledgment, and the mortgage is recorded pursuant to the requirements of the statute, the mortgage will be void as to purchasers and creditors of the mortgagor, even with actual knowledge of the mortgage, and that actual knowledge is not inconsistent with good faith. Sage, v. Browning, 51 Ill. 217; McDowell v. Stewart, 83 Ill. 538; Frank v. Minor, 59 Ill. 444; Lemen v. Robinson, 59 Ill. 115; People v. Hamilton, 17 Ill. App. 599.
    The change of possession from the mortgagor to the mortgagee must have publicity; it must be. apparent to those who have occasion to observe it. Flagg v. Pierce, 58 N. H. 295.
    When the property is of a bulky nature, so that only a symbolical delivery can be made, and it is permitted to remain in a place where the possession may be equivocal, and doubts exist as to the sufficiency of the possession, they should be solved in favor of the purchaser or creditor, and against the mortgagee, because he had the power to protect himself by filing or recording his mortgage, and neglected to do so. Anderson v. Benneman, 44 Mich. 198.
    As to ponderous, bulky property, on principle, the rule, as drawn from the authorities, is that the mortgagee must take the best possession that the nature of the property will admit of—that is, he must openly and unequivocally, by himself, personally, or through a duly authorized agent, assert dominion over it, and do everything that can reasonably be done to give publicity to that dominion. May v. Tallman, 20 Ill. 443; Gaines v. Becker, 7 Ill. App. 315; Funk v. Staats, 24 Ill. 632; Ticknor v. McClelland, 84 Ill. 471; Chaplin v. Rogers, 1 East, 192; Jewett v. Warren, 12 Mass. 300; Rice v. Austin, 17 Mass. 197.
    Many other cases might be cited, but the foregoing sufficiently illustrate the spirit of the law, and sustain the rule we have drawn from them.
    Concurrent possession by the mortgagor and mortgagee is not sufficient to protect the property from creditors or purchasers. Sumner v. Dalton, 58 N. H. 295; Hale v. Sweet, 40 N. Y. 97; Griffith v. Douglass, 73 Me. 532; Flagg v. Pierce, 58 N. H. 348.
    As mere pledges, instead of chattel mortgages, exhibits A and B did not convey the title to the bank. In case of a pledge the title remains with the pledgor, and the pledgee can not maintain trover. By a mortgage, the title is transferred; by a pledge, the possession. Jones on Pledges, Sec. 7; Walker v. Staples, 5 Allen, 34; Conner v. Carpenter, 28 Vt. 237; Brown v. Bement, 8 Johns. 96; Wright v. Ross, 36 Cal. 414; Tannahill v. Tuttle, 3 Mich. 104; Dook v. Bank of State, 6 Ired. L. 309; Jackson v. Rutherford, 83 Ala. 155; Evans v. Darlington, 5 Blackf. 320; Eastman v. Avery, 23 Me. 248.
    Messrs. McIlduff & Torrance, for appellee.
    We think that the law, as well as the facts, warrants us in saying appellee had such possession of the corn as was good against appellants.
    The rule laid down by our Supreme Court in the cases 'of Minor v. Herriford, 25 Ill. 344, Havely v. Lowry, 30 Ill. 446, and Davidson v. Waldron, 31 Ill. 120, cited by appellants, is held not to apply to a levy upon a crib of corn in Richardson v. Rardin, 88 Ill. 127. The acts done by the constable in that case were very similar to what was done in the case at bar.
    An actual removal of an entire mass or cumbrous article (as a crib of corn) is not necessary to constitute a delivery and change of possession. May v. Tallman, 20 Ill. 443; Hart v. Wing, 44 Ill. 142.
    Where growing wheat and corn are sold in good faith, being then on the farm of the seller, and the purchaser takes all the possession that is practicable before harvesting, and after the wheat is cut down, and before sufficient time elapses for him to remove it, it is seized on execution against the seller, the purchaser will be entitled to hold it on a trial of the right of property. Thompson v. Wilhite, 81 Ill. 356; Graff v. Fitch, 58 Ill. 374.
    In Van Brunt v. Pike, 4 Gill, 270, S. C., 45 Am. Dec. 126, the Supreme Court of Maryland say constructive delivery of bulky articles, such as pig iron, at a distance from the place of contract, in care of an agent, is sufficient to pass title upon a present sale, and that it is good constructive delivery of bulky articles in care of agent of vendor at a distant place, for both vendor and vendee to notify him of the sale, and for the vendee to instruct him to ship the articles to his agent at another place, he agreeing to comply with such instructions, and that such sale and constructive delivery will defeat an attachment by creditors of such vendor, although the pig iron remains just as it was at the time of such sale.
    The rule in Maryland as to a delivery of growing crops is the same as that in Illinois. Byer v. Etnyre & Besore, 2 Gill, 150; S. C., 41 Am. Dec. 410. See, also, Calkins v. Lockwood, 17 Conn. 154; S. C., 42 Am. Dec. 729.
    In Vermont it is held that logs in a stream, or piled on its banks, are of such a cumbrous character and so situated as to pass as against creditors, by a bill of sale, without further delivery. Sanborn v. Kittredge, 20 Vt. 632; Kingsley v. White, 57 Vt. 565.
    In the last case Ross, J., says: “To hold that such property comes within the operation of the ordinary rule would practically preclude any sale of it which would be valid against attachment by the creditors of the vendor. So in Wisconsin. Morrow v. Reed, 30 Wis. 81. To the same effect are Steam Mill Co. v. Brown, 37 Me. 1 ; S. C., 99 Am. Dec. 752 ; Jewett v. Warren, 12 Mass. 300.
    If the property which is not within the actual possession of the owner be sold and delivered to the vendee, leaving it in the place where it was situated is not leaving it in the possession of vendor, and creditors should not be misled because it remains in the same locality. To presume, without inquiry, that it remains his, is an unwarrantable presumption. Morse v. Powers, 17 N. H. 286. See, also, Tuxworth v. Moore, 9 Pick. 347; S. C., 20 Am. Dec. 479.
    There is a very full note to the case of Gibson v. Stevens, 8 How. 384, book 12, p. 1123 Law. Ed., and numerous cases are cited.
    In Barney v. Brown, 2 Vt. 374, S. C., 19 Am. Dec. 720, it was held sufficient as against creditors of the seller to select a number of sheep out of a larger number, and, after marking them, leave them with the bailee of the seller where they had been. See, also, Straus v. Minzesheimer, 78 Ill. 492.
    If has been held in the sale of a ship, that the transmission of a bill of sale is equivalent to a delivery to the vendee, and the transfer of title is perfected from the instant that the letter containing the bill is mailed, so as to entitle the vendee to the possession of the ship as against attaching creditors of the vendor, though the bill of sale is not received by the vendee till after the levy of the attachment. Begley v. Morgan, 15 La. 162; S. C., 35 Am. Dec. 188.

      When there is any evidence tending to prove a change of possession, the question must be submitted to the j ury. Warner v. Carlton, 22 Ill. 415; Stephenson v. Clark, 20 Vt. 624; Strans v. Minzesheimer, 78 Ill. 492.
    When there is a conflict of testimony in regard to the change of possession, the question must necessarily be referred to a jury. Should a court in such a case attempt to assert authoritatively the presence of legal fraud, it would be usurping the rights of a jury. Forsyth v. Matthews, 14 Pa. 100 ; Wilson v. Hooper, 12 Vt. 653; Hodgkins v. Hook, 23 Cal. 581.
    From the authorities it would seem that the facts of each particular case should be left to the jury to say whether there was a delivery of possession. In the case at bar that question was most favorably submitted for appellants and found against them. The testimony is conflicting, but there is sufficient evidence to sustain the verdict on that point.
   C. B. Smith, J.

This was an action in trover, brought by appellee against appellant. A trial was had in the Circuit Court, which resulted in a judgment for appellee, and appellant brings the case here on appeal, and asks for a reversal.

The declaration alleges that on July 20,1886, at Black-stone, in Livingston county, the plaintiff was lawfully possessed, as of its own property, of 24,000 bushels of corn, of the value of $10,000, and that plaintiff then and there lost the same, .and that the same then and there came to the possession of the defendants by finding, and that, knowing the said corn to be the property of the plaintiff, defendants have not delivered it to the plaintiff on demand being made, but have, on the contrary, converted the same to their own use, etc. The plea was not guilty.

The facts disclosed by this record appear to be substantially these: The plaintiff was located and doing business at Pontiac, Illinois, under the name of “Livingston County ¡National Bank.” L. E. Kent & Co. was a firm composed of L. E. Kent, of Pontiac, and J. H. Brown, of Joliet. The business of this firm was buying and shipping grain from Pontiac, Cayuga, ¡Nevada, Blackstone and Smithdale, all stations on C. & A. B. R, in Livingston county. Kent was the active business manager of this firm, and, so far as this record discloses, had the entire management of all the business transactions of the firm. Barker and Sidwell, defendants mentioned in this record, were grain merchants in the city of Chicago. At the time of this controversy Josepli M. Greenebaum was president of the bank, and resided at Chicago. Henry G. Greenebaum was cashier and D. C. Eyler assistant cashier, and both resided at Pontiac. For a year or more before the beginning of this controversy Kent & Co. had been customers of the bank, and, so far as appears, everything had gone well until, on the 15th of February, 1886, Kent & Co. executed the two following papers to secure money then due the bank, viz.:

Exhibit A.
‘‘$2,500. Pontiac, Ills., Feb. 15, 1886.
“On June 1st, 1886, after date, for value received, we promise to pay to the order of Livingston Co. Rat. Bank twenty-five hundred dollars, at their office, in Pontiac, Illinois, with interest at eight per cent, per annum, after date.
“ And, to secure the payment of said amount, we hereby authorize, irrevocably, any attorney of any court of record to appear for me in such court, in term time or vacation, at any time hereafter, and confess a judgment, without process, in favor of the holder of this note, for such amount as may appear to be unpaid thereon, together with costs and five per centum attorney’s fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such 'judgment, hereby ratifying and confirming all that my said attorney may do by virtue hereof.
“L. E. Kent & Co.
“L. E. Kent.
J. H. Brown.”
“ 8,000 Bushels. Pontiac, Ills., Feb. 15, 1886.
“We have this day delivered into the possession of Livingston Co. Rational Bank of Pontiac, Illinois, eight thousand bushels of ear corn, stored in cribs located on land owned by the Chicago and Alton Railroad Company in Revada, Ill., each of the cribs or bins being marked with the name of Livingston County Rat. Bank, and numbered ‘One’ and ‘Two.’
“ This delivery is made by way of mortgage to the said Livingston Co. Rat. Bank as security for the above note, and for any furthe" advances made or to be made- by them to or for us, and one cent per bushel commission on said corn, and we agree to keep the said corn insured for their benefit (loss, if any, payable to them, and policies with this warehouse receipt or memorandum of delivery), at least to the amount of above note; and, upon their request, to procure it to be shelled and shipped, consigned to them or their order, as directed by them, at our own cost and expense. We guarantee the corn to be equal to the grade known in Chicago as Ro. 2, and the quantity and quality to hold out as stated on the arrival of the corn at Chicago; and if the above note be not paid at maturity, we hereby authorize the said Livingston Co. Rat. Bank to sell said corn at public or private sale, without notice, and apply the proceeds of such sale to the payment of said note. The above mentioned corn is free from all claims and incumbrances except those due said bank.
“L. E. Kent & Co.”
“8,000 Bushels. Pontiac, III., Feb. 15, 1886.
“We have this day received, and agree to hold possession of, as the custodian of Livingston Co. Rat. Bank, of Pontiac, 8,000 bushels of ear corn, which is stored in cribs located on land owned by the C. & A. Railroad Co. at Nevada, Ill., each of the cribs or bins being marked with the name of Livingston Co. Rat. Bank, and numbered ‘One’ and ‘Two.’
“ And I agree to keep said corn in good order, and the cribs or bins in good repair, and to notify said bank by mail or telegraph, immediately, of any damage to, or interference with said corn. For all of which services I have received full compensation. “--, Custodian”
Exhibit B.
“ §5,000. Pontiac, III., Feb. 15, 1886.
“ On June 1,1886, after date, for value received, we promise to pay to the order of the Livingston County Rat. Bank, five thousand dollars, at their office in Pontiac, Illinois, with interest at eight per cent, per annum after date.
“ And, to secure the payment of said amount, we hereby authorize, irrevocably, any attorney of any court of record to appear for me in such court, in term time or vacation, at any time hereafter, and confess a judgment, without process, in favor of the holder of this note, for such amount as may appear to be unpaid thereon, together with costs and five per centum attorney’s fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that my said attorney may do by virtue hereof.
“L. E. Kent & Co.
“L. E. Kent.
“ J. H. Bkown.
“16,000 Bushels. Pontiac, III., Feb. 15, 1886.
“We have this day delivered into the possession of the Livingston Co. Nat. Bank, of Pontiac, Illinois, sixteen thousand bushels of ear corn, stored in cribs located on land owned by L. E. Kent in Blackstone, Illinois, each of the cribs or bins being marked with the name of Livingston Co. Nat. Bank, and numbered ‘One’ and ‘Two.’
“This delivery is made by way of mortgage to said Livingston Co. Nat. Bank as security for above note, and for any further advances made or to be made by them to or for us, and one cent per bushel commission on said corn, and we agree to keep said corn insured for their benefit (loss, if any, payable to them, and policies with this warehouse receipt or memorandum of delivery), at least to amount of above note; and, upon their request, to procure it to be shelled and shipped, consigned to them or their order, as directed by them, at our own cost and expense. We guarantee the quality of the corn to be equal to the grade known in Chicago'as No. 2, and the quantity and quality to hold out as stated on the arrival of the corn at Chicago; and. if the above note be not paid at maturity, we hereby authorize the said Livingston Co. Nat. Bank to sell said corn at public or private sale, without notice, and apply the proceeds of such sale to the payment of said note. The above mentioned corn is free from all claims and incumbrances except those due the Livingston Co. Nat. Bank.
“L. E. Kent & Co.
•‘16,000 Bushels. ' Pontiac, III., Feb. 15, 1886.
“I have this day received, and agree to hold possession of, as the custodian of the Livingston Co. Nat. Bank, of Pontiac, Ill., sixteen thousand bushels of ear corn, which is stored in cribs located on land owned by L. E. Kent in Blackstone, III., each of the cribs or bins being marked with the name of Livingston County National Bank, and numbered ‘ One ’ and ‘ Two.’
“And I agree to keep said corn in good order, and the cribs and bins in good repair, and to' notify said Livingston County National Bank, by mail or telegraph, immediately, of any damage to, or interference with said corn. For all of which services I have received full compensation. .
“John Riley,
“ Custodian.”

To each of these notes is attached an acknowledgment of the delivery of the corn therein named to the bank, signed by Kent & Co., one of them being for 16,000 bushels and the other for 8,000 bushels. To both of these acknowledgments is also attached a statement explanatory of the delivery, showing its purpose to be for security for the note as well as for future advances.

To each of these papers is also attached what may be called a custodian’s receipt, one of which (for the Blackstone corn) is signed by John Riley, custodian for the bank; the other receipt (for the Nevada corn) is not signed.

Counsel for appellants, in their argument, call this paper attached to the note a chattel mortgage, and insist that it shall be regarded as a chattel mortgage security. John Riley 5 the custodian of the Blackstone cribs, swears that the two cribs at Nevada, which are described in “Exhibit A,” were filled up in the winter of 1885, and nailed up tight, and that he then, by direction of L. E. Kent, nailed boards on each of these cribs, on which boards were the words, “ This is the property of the Livingston Co. Nat. Bank.” The same witness testified that he saw the same kind of boards, with the same words on them, on the two cribs at Blackstone, named in “Exhibit B,” before the corn was shipped out, and that both the cribs at Blackstone were full of corn. The record also discloses the fact that prior to the date of Exhibits “A” and “B,” L. E. Kent & Co. had been shipping grain to the defendants Barker & Sidwell, and there is evidence in the record tending strongly to prove that Kent & Co. were then in debt to Barker & Sidwell, and that they were pressing Kent & Co. for payment. The notes were neither of them paid at maturity. During the early part of June, 1885, L. E. Kent & Co. began shelling and shipping the corn out of these four cribs named in Exhibits “A” and “ B,” and continued to shell and ship such corn until it was nearly all shipped out. The two cribs at Nevada contained about 9,000 bushels, and the two cribs at Blackstone about 15,000 or 16,000 bushels. Of this 24,000 or 25,000 bushels of corn, all had been shelled and shipped to defendants except about 1,500 or 2,000 bushels at Blackstone, when, on the 24th day of July, the officers of the bank discovered for the first time, as they claim and swear, that Kent was selling the corn out of these cribs, when they immediately put a stop to any further shipment, and placed a man in charge of the remnant. There is no denial by Kent & Co., or by the defendants, that all this corn was shipped to Barker & Sidwell, but the fact is expressly admitted. So far there is no dispute about the facts, as we have stated them, except as to the posting the board notices on the cribs before the corn was shelled and sold. Defendants’ counsel contend with great earnestness and zeal: 1. That the plaintiff did not show such possession of the corn as will entitle him to maintain trover, insisting that his possession was only such as the supposed chattel mortgage gave him; and, 2. That even if plaintiff had the actual possession of the corn, that he gave Kent authority to sell it for him; and, 3. That even if Kent had no authority to sell then it was sold with the knowledge and consent of plaintiff’s custodian, John Riley; and, lastly, that even if the corn was sold without the authority of the plaintiff or its agents, still that the defendants had no notice of any interest in the corn by the plaintiff, and that for that reason they are not liable.

The first and most important question involved is whether the bank had such possession or right of immediate possession of the corn as to enable them to maintain trover, and such possession as would charge strangers with notice of its right to the corn.

Unless the proof shows that the plaintiff was in the actual possession, or had the right to the immediate possession of the corn, .then this action could not be maintained. But we think the proof in this case sufficiently shows that the bank had taken all the possession of these four cribs of corn which they could take, having regard to the bulky nature and amount of the property. The proof is clear, and really not disputed, that these cribs were all separate and distinct from what was known as “shipping cribs;” that when they were filled they were nailed up and closed, and boards nailed on all of them distinctly notifying everybody who would read that the corn belonged to the bank. John Riley swears he nailed up some of these boards and saw the others up, and Kent himself, over his own signature, states in Exhibits “A” and “B” that these cribs had been delivered into the possession and custody of the bank, and that these boards, giving the notice of such ownership, were nailed on the cribs. Ri-'ey swears he put the boards up at BTevada along in the winter, and saw them up at Blackstone afterward. On the 15th of February, 1886, Kent states in writing that these notices were on all these cribs; this was long before appellants bought the corn.

This testimony is only contradicted by two or three witnesses, who swear they did not see any boards on the cribs. This negative testimony is not sufficient to overcome the statements of the man who swears he put up the boards, and the written admission of Kent that the boards were up and delivery made.

What more could the bank have done to notify all the world of its ownership of the corn except to have stationed a watchman at the cribs, or to have removed the corn out of the cribs and taken it to some other place? This the law does not require.

Counsel for appellant cites to us a great many authorities requiring a purchaser of a chattel to take actual physical possession in order to protect himself against the rights of third persons. Undoubtedly the rule is everywhere recognized that such possession as a purchaser can reasonably take must be taken. If the property is of such a nature that it can be removed, then it must be removed; but this rule does not apply to such property as is of a heavy and bulky nature and not easy .or practicable to remove. hTo better illustration of the rule can be found than the case at bar. Here were four cribs containing about 25,000 bushels of corn, cribbed up at a place where the corn was intended to remain until it was shipped. Its removal was utterly impracticable, and would have involved the purchaser in large expense. It is the common knowledge of all men, and especially so with grain merchants, that the immense cribs of corn found at almost every railway station in this State, containing many thousands of bushels, are placed there to remain permanently, until shipped out on the cars to the various markets of the country, and it is equally well known that this grain is the subject of sale and transfer, and there is no hardship in requiring those who deal with this grain to first know who is the owner. The rule that heavy and bulky articles, such as cribs of corn, need not be removed in order to protect the purchaser, is expressly held in May v. Tallman, 20 Ill. 443. In that case the question arose over the title to a crib of corn containing only 300 bushels; the purchaser tosk two loads and the remainder was taken from him, and he brought trover to recover the value of the corn and had judgment, and it was affirmed.

In Hart v. Wing, 44 Ill. 141, the ease was like the one at bar, and the question was whether a purchaser of a crib of corn was bound to remove it in order to protect himself, and it was held that it was not necessary for his protection against subsequent incumbrancers and purchasers; and the May case, supra, was cited with approval.

These two cases seem to be conclusive against appellant on the question of the sufficiency of the delivery, so as to protect appellee against subsequent purchasers. See, also, Tognine v. Kyle, 17 Nev. 209; Cartwright v. Phoenix, 7 Cal. 281; Haynes v. Hemsicker, 26 Pa. St. 58; and Chase v. Ralston, 26 Pa. St. 539. These latter oases are clear illustrations of the rule we have announced that a purchaser is not bound by the same rule to remove heavy and bulky goods that he is with articles that can be readily removed, in order to protect himself against subsequent purchasers.

In this view of the case it then becomes wholly immaterial whether Exhibits “A” and “B” contain a chattel mortgage or not. Hndcr our statute, where the property mortgaged is delivered to the mortgagee and remains in his possession, no record of such mortgage is-necessary. Delivery of the-possession of the property is as effectual as the acknowledgment and recording the mortgage. Wilson v. Pearson, 20 Ill. 81. We hold, then, that this corn was delivered by Kent & Co. to the bank by a proper and formal delivery, and that the bank took all the possession that was practicable or necessary to protect it-against the claims of subsequent purchasers ; and that the bank gave reasonable and proper notice to the world of its possession and ownership of the corn. But if it be conceded that the bank was not, in fact, the owner of this corn, but held it only as a security, bail or pledge for its debt, and had it in possession, still the bank would be entitled to maintain trover against a subsequent purchaser. Hutton v. Arnett, 51 Ill. 198.

Again, it is insisted that Greenebaum, the cashier of the bank, directed Kent to shell and ship this corn and sell it. This was denied by the bank, and the evidence upon the point was' conflicting and was fairly submitted to the jury, and we can not say that their finding is not supported by the evidence.

It is in proof that Kent’s subsequent conduct and declarations made to the bank officers were of such character as to be wholly inconsistent with his claim that Greenebaum had directed him to sell the corn; Greenebaum was dead, and could not contradict him at the trial. This was a vital point in the case, and no doubt was fully considered by counsel, court and jury. We see nothing in the evidence to justify us in saying the jury erred in their finding upon that point. The written statement of L. E. Kent in Exhibits “A” and “B” flatly contradict him when he swears that there were no boards on the cribs in 1886, declaring the corn to be the property of the bank.

It is further urged by defendant that Riley, the custodian and agent of plaintiff for this corn at Blackstone, knew that Kent was shelling and shipping it, and that it was being done with Riley’s knowledge and consent. This Riley denies, and says he knew nothing of the fact that Kent was shipping out of these cribs at Blackstone until he was notified by Greenebanm, about the 24th or 25th of July, and that he then went immediately there, and found the corn all gone except 1,500 or 2,000 bushels, which they took charge of. It is true Riley helped shell and ship the corn at Nevada, but he was not the custodian nor the agent of the bank for that corn, and the bank was not bound by his acts or his knowledge for the corn at Nevada. He was there in the employ of Kent & Co. There is no proof that any corn was shelled or shipped out of the cribs at Blackstone with the knowledge or consent of Riley, so as to bind the firm by his act or knowledge.

The proof is that Kent & Co. were buying corn all the time at all these stations, and were shelling and shipping up to the time of their failure, which occurred after July, when they had shipped the corn in controversy. At the same time they were drawing drafts through the bank, just as they had been doing before, and actually drew drafts through the plaintiff bank for all or nearly all this corn now in controversy, against the consignees, and the drafts were paid through plaintiff bank; but the evidence fails to show that the bank officers knew they were shelling the corn out of these four cribs included in Exhibits “A.”and“B.” The fact that Kent & Co. were buying grain at several different stations and handling large amounts of grain and money every day in which the bank had no interest or claim, and which were paid through the bank, was all calculated to mislead them, and at least furnished no grounds to suspect that Kent & Co. were shelling grain assigned and delivered to the bank. The bank was guilty of no negligence or fraud in not stopping the sale of this corn, or in not using the proceeds of drafts drawn against it, when it did not know that its corn was being shelled and the proceeds appropriated to other uses.

The defendants contend they had no notice of the rights of ownership or possession of the bank. • It may be true, as a matter of fact, that defendants had no actual notice or knowledge of the possession or ownership of the plaintiff.

But if this be true, whose fault was it ? Certainly not the fault of plaintiff. It did everything it could reasonably do to protect third persons, and everything the law required it to do to make known its title. Had the defendants been as vigilant in looking after the title to this large amount of corn and in guarding themselves against fraud as was the plaintiff in protecting its interest before they bought, they would have readily found that Kent &Co. had no title or right to sell the corn, and thus saved themselves from the loss that must fall upon them through their own neglect. But there is proof in the record, from Henry Greenobaum and Holdridge, that defendant Barker admitted that he knew of plaintiff’s ownership of the corn before he bought it, and there is also proof of the declaration of L. E. Kent that he informed Barker also before he bought the corn that the bank owned it. This proof and these conversations with Greenebaum, Holdridge and Kent, defendant Barker denies. This was one of the controverted facts in the case fairly submitted to the jury, and we can not say that they found against the weight of the evidence.

Complaint is made that the court erred in giving certain instructions for the plaintiff upon an immaterial question. It is well settled that a party can not ask of the court improper or erroneous instructions or rulings in a case and'then assign such action for error. The defendant asked and the court gave the same instruction to the jury which the court gave on the part of the "plaintiff, and of which appellant now complains. This he can not do. Golden v. Mueller, 22 Ill. App. 527 ; Moline Plow Co. v. Anderson, 24 Ill. App. 366.

A great number of instructions were asked and given on both sides, and we are satisfied that the jury was correctly instructed, with the exception named above, and of which appellant, can not complain, and that no substantial error was committed against the defendant. No specific objections are pointed out, and none have been discovered by us after a careful examination of all the. instructions.

It is also claimed that the damages were excessive. Several witnesses testified that the price of corn at Nevada and Blackstone at the time it was taken was from forty to forty-two cents per bushel, and the proof shows that nearly 23,000 bushels of corn were taken. The verdict is really less than the proof would justify.

It is further objected that the court erred in not granting a new trial on the ground of the prejudice of the juror Bennett. This claim is based on a declaration alleged to have been made by Bennett after the verdict, that he did not believe what Kent swore to on the trial because he knew him too well. Conceding that the juror made this declaration (but which he denies), still it can not be received to impeach his verdict. It is well settled that a juror can not impeach his own verdict by declarations made after the trial which would show his disqualification as a juror, or to show misconduct on the trial. Allison v. The People, 45 Ill. 37 ; Nicolls v. Foster, 89 Ill. 386. The affidavit was properly rejected by the court.

But it is lastly urged that National banks have no right to take chattel mortgages. This objection has been overruled in Spafford v. The Bank, 37 Iowa, 181. But we do not think Exhibits “A” and “B ” are in any sense chattel mortgages, or that the parties ever regarded them as such; they were not acknowledged or recorded. But even if they were chattel mortgages, the plaintiffs have reduced the property into possession, which amply protected it, under the authority of Hutton v. Arnett, 51 Ill. 198.

We have thus gone through this record and extended this opinion much beyond any legal propriety or necessity, and examined carefully every objection raised in the record by connsel for appellant, because of the bitter complaint made by counsel against the verdict of the jury and the judgment of the court, and the earnest appeal made to us to reverse it because of the great injustice done to the defendants, and who, it is urged, will be ruined if they are compelled to pay this judgment. We are unable to find in this record any error committed by the court, or any injustice done to these defendants, or that they have been deprived of any legal right.

Finding no error in the record, the judgment must be affirmed.

Judgment affirmed.


author: Lacey, P. J. C. B. Smith, J.

text:
    The People ex rel., etc., v. John S. Boyd et al.
    Quo Warranto—School Directors—Ouster—Consolidation of Districts—• Sec. 5, Chap. 83, R. S.

    1. A quo warranto proceeding is in the nature of a civil remedy.
    2. It seems that the statute of limitations applies when the proceeding is to enforce private rights.
    3. The writ may be denied merely on the ground of public policy.
    4. In a proceeding of this character, the object being to oust school directors from office and have the district in question declared void, the information having been filed more than five years after the formation of the district, this court holds that the writ was properly denied.
    [Opinion filed May 25, 1889.]
    In ebboe to the Circuit Court of Kendall County; the Hon. C. W. Hpton, Judge, presiding.
    This was an information for qtio warranto, filed by the state’s attorney of Kendall county in the Circuit Court of that county on the 27th day of July, 1887, against the apjiellees, to compel them to show cause by what rights they claimed to hold the office of directors of school district number 1, T. 37 3ST., R. 7, E. of the 3d E. M. in said county. At the January term of said court' the appellees appeared and demurred to the information. The court sustained the - demurrer, holding the application to be insufficient, and rendered judgment in favor of appellees on demurrer, from which judgment appellant has sued out a writ of error from this court seeking a reversal of the said judgment. The information alleges that prior to April, 1882, school district number one aforesaid was comprised of territory in the said township 37 and the R. £of Sec. 5 and the R. W. J Sec. 4 in township 36 R., R. 7, E. 3d P. M. in said county, and for more than twenty years last past, prior to 1882, the directors of school district number one aforesaid had received and appropriated to the use and benefit of said district number one the school taxes levied upon and collected from the territory embraced in said town 36, belonging to said school district number one, as aforesaid, including taxes collected from the personal property of residents of said district number one aforesaid, residing in said district number one aforesaid, in said township 36, and the benefit and advantages so arising from the taxes so collected had been enjoyed by the citizens of said district for and during all that time. And the state’s attorney aforesaid further gives the court to understand and be informed that for more than twenty years last past, prior to 1882, school district number three, township 37 north, range seven aforesaid, was comprised of territory and lands described as follows, to wit: Section 28, 29, part of Sec. 30, S. W. £ Sec. 27, all of Sec. 32 and 33 north of Fox river, in said town aforesaid.
    The state’s attorney further gave the court to understand that on the third day of April, 1882, an attempted consolidation of said school districts numbers one and three was made, and resulted in the formation of a pretended district number 1, T. 37 R.,R. 7, E. 3d P. M., comprising lands aforesaid, townships 36 and 37 aforesaid; that on or about said 3d day of April, 1882, a petition praying for a consolidation of said districts was presented to the trustees of schools of said township 37; that on the 13th day of April, 1882, said petition was acted on and the prayer thereof granted and the said consolidation of the said two districts attempted and pretended to have been made, and from that time to the present its pretended school officers have received and appropriated to its school purposes the school taxes from the whole of said territory lying in said two townships aforesaid illegally, and without any warrant or authority of law, and have assumed fo perform the duties of school directors of said district number one as so pretended to be formed, and have collected and received taxes, contracted indebtedness and imposed taxes on the whole of said pretended district without warrant of Jaw.
    For points of illegality the information shows in substance:
    1st. The petition praying for consolidation was never presented, as required by statute, to the trustees of schools of township 36 aforesaid, and such trustees never acted in such petition or upon the attempted consolidation, but the alleged consolidation was wholly made by the trustees of schools of township 37 aforesaid.
    2d. Said petition was not filed with the trustees of schools of said township 37 twenty days before the regular meeting in April, 1882.
    3d. Bo notice of said petition was filed nor copy delivered to the president or clerk of the board of directors, or either of them, of said districts one and three, as required by law, and the school directors of district number one had no notice of the presentation of said petition to said board of trustees, or of the time and place when said petition was to be acted upon by said board of trustees.
    4th. The clerk of the board of trustees of said township 37 did not make a complete copy of said action of the trustees, certified by the president of the board of trustees and clerk, and file the same, together with a map of the township showing the districts and an actual list of the taxpayers of the newly arranged districts, with the county clerk within twenty days of the action of the trustees.
    fitli. That the said trustees failed to order an election within fifteen days to elect a board of directors of said newly formed district, after the action forming the district, or give ten days notice of such election, as required by the statute.
    6th. The board of trustees failed to make any order of the action upon said petition, or file the same as required by statute, or make any legal record of their action in said petition.
    7th. The regular meeting of the board of trustees was on the 3d day of April, 1882, and the petition was not acted upon by said board on the 13th, as required by statute.
    8th. The petition was insufficient in law, in that it did not aver that said change and consolidation was petitioned for by a majority of the legal voters of each of said districts affected by the proposed change or by any legal voters ; nor that the change and consolidation was petitioned for by two-thirds of the legal voters living within certain territory to be affected by said change and consolidation; nor by two-thirds of the legal voters living within certain territory containing not less than ten families, asking that said territory be made anew district; nor that the territory to be affected by said change and consolidation contained not less than ten families; nor that the people of said district were not properly accommodated with school facilities and privileges, but would be by the proposed change: and the said petition did not contain any or a proper description of the territory to be affected by the proposed change and consolidation.
    The above are all the causes relied upon as showing the illegality of the new district.
    Messrs. Fitzgerald and Fowler Bros., for appellant.
    Messrs. Charles Wheaton and R. P. Goodwin, for appellees.
   Lacey, P. J.

The appellee questions the sufficiency of the information in the respect that it does not show upon its face in proper legal form any grounds of illegality in the proceedings and formation of the new district number one.

But we are inclined to think that at least some of the causes, though not all, set out, are in legal form and would be sufficient if the information had been filed in apt time. As the decision of the case hinges upon whether the statute of limitations is a bar to the prosecution of the information, or whether, if not strictly a bar to all quo warramto proceedings, the lapse of time in this class of cases is not sufficient grounds to deny the writ, we will not further occupy our time in consideration of the questions raised as to the sufficiency of the petition on its merits in case of its having been filed in proper time.

It is insisted on the part of appellee that the quo warranto is a civil action and that the statute of limitations of five years runs against it. Sec. 15, Chap. 83 of the R. S. This section provides, among other things, that “all civil actions, not otherwise provided for, shall be commenced within five years next after the cause of action accrued.”

It is also claimed, and the position is not controverted, that the statute of limitations may be interposed by demurrer where the petition or declaration discloses the proper facts, as in this case, to raise the question. Henry Co. v. Winnebago Drainage Co., 52 Ill. 454; Ilit v. Collins, 103 Ill. 74; International Bank v. Jenkins, 104 Ill. 143; Bell v. Johnson, 111 Ill. 374.

On the other hand, the appellant replies that the question involved here respects public rights and is prosecuted by the state’s attorney in his official capacity, and that the statute of limitations will not run against a proceeding of this kind; and, as showing this to be a question respecting public rights, cites Cheshire v. People ex rel., 116 Ill. 493. The appellant also cites from the opinion of the court in Logan Co. v. City of Lincoln the following passage, to wit: “Our understanding of the law is that, as respects all public rights or as respects property held for public use upon trust, municipial corporations are not within the statute of limitations.” The question presented involves a consideration of the nature and character of a quo warranto proceeding. In the first place, what is the nature of the action? Is it civil or criminal? If civil, does the above statute of limitations apply to the action in all cases or in any case ? Is the writ one of right, or the issuance of it within the sound discretion of the court regulated by law and precedent?

In the first place, we think there can be no question but that the action is, at this day, however it formerly might have been, regarded by the law as in the nature of a civil remedy, and it has been so decided by the Supreme Court of this State. People v. Shaw, 13 Ill. 581; Ensminger v. People. 47 Ill. 384. The quo warranto proceeding is used to enforce both public and private rights. Its purpose is dual, and the law as regards the statute of limitations ought to, and • we think does, apply to the action, at least where its object is to enforce private rights as distinguished from that to enforce public rights; and, in addition to this, the writ will be refused even before the statute of limitations runs, in certain cases where the object sought is to enforce private rights, and in some other proper cases, when public policy requires that the writ should not issue in such cases. As showing how the question has been regarded at common law, we will quote some extracts from the decisions of distinguished English judges, and passages from text-books. In King v. Stacey, Durnford & East, Vols. 1 and 2, p. 1, Lord Mansfield says: I remember when it was the practice to grant quo warranto information as a matter of course; but now, since these matters have come more under consideration, it is no longer a matter of course, and the court are bound to consider all the circumstances before they disturb the peace and quiet of any corporation. The next thing the court took into consideration was the length of time within which they would grant information. It was customary to never refuse for any length of time, but as the inconvenience and vexation of this were plainly perceived the court were desirous to go by a certain rule, and therefore the time was indefinite by the common law and fixed by no statute; they drew a line by analogy by the statute of limitations in ejectment; they drew it for twenty years, and this has been acquiesced in by the bar and parliament where it was once mentioned. * * * But when the court laid down the general rule, they also said that it may be refused within twenty years upon other circumstances to warrant the court to say you shah not make use of the King’s name for such and such purposes. The court is bound to guard the corporations etc. Yet the King may prosecute by his attorney-general.” In The King v. John Newling, Vols. 3 and 4, Durnford & East, 171 (315), Butler, Justice, said: “Lord Mansfield has repeatedly said that the meaning of the rule was, that let the case be what it might, if twenty years have elapsed the relator shall not be made to make any application whatever; but we all remember from that time to the present, cases in which the court has refused to grant quo u)arranto information within that time; as where it appears the relator might have come sooner, or where a judgment against a defendant would tend to a dissolution of a corporation.”

Afterward, in Rex v. Decken, 4 Term, 282, it was held that the statute of limitations of six years applied as against a person in peaceable possession of his franchise for six years. See also High on Extraordinary Remedies, 692.

High on Extraordinary Remedies, Sec. 603, says: “ In modern times the remedy as a means of criminal prosecution has fallen into disuse, and has come to be regarded as a purely civil remedy, which, though partaking in some of its forms and incidents of the nature of criminal process, it is yet a strictly civil proceeding,.resorted to for the purpose of testing a civil right by trying the official title to an office or franchise and ousting the wrongful possessor.”

It is said that the state’s attorney in this case is prosecuting in his official capacity and not for the benefit of any private person, and hence in this form the statute of limitations or lapse of time should not interfere to arrest the prosecution. This appears to be the form of the prosecution, yet we think the court will always look into the nature of the object sought to be obtained rather than to the form of the prosecution in determining the question of lapse of time and statute of limitations as applicable to the case. If the state’s attorney should file information in his official capacity, when, in fact, he was only representing the private rights of an individual, the court would not be bound to so regard it if the nature of the case and objects sought showed the contrary. This, we think, is clearly deducible from the opinion in The People ex rel. North Chicago Ry. Co., 88 Ill. 537. The proceedings in the case before us show exactly what the object sought is. Directly, it is to oust from office the three school directors named, and indirectly, to declare the district void, and this would be the result if a judgment of ouster were rendered. The public undoubtedly has enough interest in the matter to entitle it to be called a public prosecution to the extent that the state’s attorney might omit the name of a relator, or he might proceed under the name of a relator, as was held in Cheshire v. People ex rel., 116 Ill. 493. We apprehend the statute of limitations and the lapse of time would operate against the prosecution in a given case in whatever form it might assume. If this were not so, form and not substance would govern the substantial rights of parties. It would seem to us that this case ought to fall within that class of cases where the statute of limitations should apply, and the right to file the information should be refused on the grounds of public policy, even before the lapse of five years, if the time elapsed were such that a wrong would be done by granting the writ. In the case of the Trustees of Schools v. The School Directors, 88 Ill. 100, an application for a writ of certiorari in a case almost exactly like this was refused, where only three years had elapsed after the consolidation of the districts into the one complained of, on the grounds that there had been unreasonable delay in asking for the writ.

The same was held in Board of Supervisors v. Magoon, 109 Ill. 142. The court say, in the first above named case, that after the consolidation, “the school funds were appropriated in accordance with such changes, and the presumption is that taxes for school purposes were thus levied and collected. It may be also that debts have been incurred in building or repairing school-houses, or for other legitimate school purposes, upon the faith of the action of the trustees, now for the first time sought to be questioned. The case, in our opinion, is clearly one where, by reason of the lapse of time, and the acquiescence of the party now complaining in the distribution of the school funds, the levy and collection of school taxes, and possibly the incurring of debts upon the faith of the action of the trustees, it was improper to allow the writ, but having been allowed, it should have been quashed on motion. . It is better, if it shall be desirable, by appropriate steps, through the proper school officers, to reorganize the districts as they were before, than to open an indefinite field of strife and litigation bynow nullifying the action of the trustees and thereby declaring everything done pursuant thereto illegal.”

It will be noted that the rules of law in regard to granting writs of certiorari are the same as to granting the information in quo warranto proceedings. The reasons for refusing the certiorari in that case are the same as present themselves here.

• In the case at bar, the information expressly avers that the directors of the new district, number one, have incurred and contracted debts. We do not have to’resort to conjecture as to that fact. The reason for refusing such writs is because “these bodies exercise powers in which the people at large are concerned and great public detriment or inconvenience might result from interfering with their proceedings.” Ibid., 88 Ill. 100. In other words, after a considerable lapse of time public policy forbids that discretionary writs like those in quo warranto and certiorari should be granted. In this case more than five years have elapsed since the formation of the district in question, and during that time the majority of the people in the district had the power to change it, if they saw proper, to the original districts. In the language of the opinion of the Supreme Court above quoted, “it is better, through the proper school officers, to reorganize the districts, if it is desired, as they were before, than to open up an indefinite field ■ of strife and litigation by now nullifying the action of the trustees and thereby declaring everything done pursuant thereto illegal.” If this information had been filed at once, appellant wmuld have been entitled to file it; but by lapse of time we think the statute of limitations above quoted has run against it, and if that were not the case, under the circumstances the information at this time ought not to be allowed to be filed. We do not wish to be understood as deciding—because the question is not presented—that the statute of limitations above quoted in all cases of informations in case of quo warranto would be a bar; but certainly in this case we think it would,, and the courts where the question is presented may even apply it in all cases. The demurrer was properly sustained. The judgment of the court below is therefore affirmed.

Judgment affirmed.

Judge Upton, having tried the case in the court below took no part in the decision in this case.

C. B. Smith, J.

I concur in affirming this judgment, but I place my judgment expressly and solely on the ground that it would now be against public policy and the best interest of the district to again open up this controversy after the lapse of so long a time. The people ought to be estopped under the particular facts in this case. I do not think the statute of limitations can be invoked to bar the action.