author: Mr. Presiding Justice Burke

text:
    Regina Louis and Myrtle Witte, Appellants, v. Checker Taxi Company and John Hoppe, Appellees.
    Gen. No. 42,338.
    Opinion .filed March 10, 1943.
    Behearing denied March 29, 1943.

      Alexander J. Reiff, of Chicago, for appellants; John F. Power, of Chicago, of counsel.
    Jesmer & Jesmer, of Chicago, for certain appellee; Julius Jesmer, of Chicago, of counsel.
    Delmar J. Hill, of Chicago, for certain other appellee; Oswell G. Treadway, of Chicago, of counsel. .
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On Friday, March 29, 1940, between 1:15 and 1:30 a. m., at North avenue and Halsted street, Chicago, Regina Louis and Myrtle Witte stepped into a taxicab of the Checker Taxi Company, and directed the driver, Samuel Morici, Jr., to convey them home. In taking them home he was required to drive in a northerly direction on Halsted street. North avenue runs in an easterly and westerly direction and comes in at 1600 north, according to the Chicago numbering system. Halsted street runs in a northerly and southerly direction and on it are laid tracks for the operation of north and southbound trolley cars. Willow street is an east and west street and intersects Halsted street at 1800 north. Between North avenue and Willow street a short street named Concord street runs east but not west from Halsted street at number 1632 north. The cab proceeded in a northerly direction on Halsted street. Mrs. Louis sat on the left hand side and Mrs. Witte on the right hand side of the cab. The driver, of course, sat in the driver’s seat. At approximately the same time Everett Hoppe, with the permission of his father, was driving the latter’s 1935 Plymouth automobile in an easterly direction on Willow street toward its intersection with Halsted street. There were six people in this car. Everett Hoppe’s mother, Mrs. Frances Hoppe, was sitting on the right hand side of the front seat; Everett’s girl friend Helen Mandik was sitting between Everett and his mother; and Anthony Waldibillig, Anthony G-roh and Mary Mandus were sitting on the rear seat. While the cars were moving into and across the intersection of Halsted and Willow streets there was an impact. When the cars were brought to a stop, the Hoppe car, which had been proceeding in an easterly direction, was on the north side of Willow street between the east curb of Halsted street and the building line, facing in a northeasterly direction, and, the cab was facing east on the south side of Willow street between the east curb of Halsted street and the building line. At the time the cars stopped the front part of the cab was opposite the right front door and about four feet south of the Hoppe automobile. The occupants of the cab were injured and were taken to St. Joseph’s Hospital and from there to their homes. They were subsequently treated by physicians. In a complaint filed in the superior court of Cook county Eegina Louis and Myrtle Witte sought judgment against the Checker Taxi Company and John Hoppe. A trial before the court and a jury resulted in verdicts finding the defendants not guilty. A motion by. plaintiffs for a new trial was overruled and judgment entered against plaintiffs, to reverse which this appeal is prosecuted.

Plaintiffs argue that the judgment is manifestly against the weight of the evidence. The corporate defendant urges that points made but not argued are considered to have been waived; that the burden is on the party alleging error to show it affirmatively by the record; that a judgment not manifestly against the weight of the evidence will not be disturbed; and that the court will not search the record to find reasons for reversal. The individual defendant maintains that the judgment is correct as to it; that the plaintiffs have failed to point out any error; that errors assigned but not argued will not be considered; that plaintiffs’ contention that “one or the other or both of the defendants was responsible for the accident” furnishes no ground for reversal; that the happening of an accident raises no presumption of negligence on the part of a defendant; and that plaintiffs cannot complain of the form of the verdict. Under the heading of “Errors Belied On For Beversal,” plaintiffs set out six grounds for reversal. However, they argue only one ground, namely, that the judgment is manifestly against the weight of the, evidence. We agree with the defendants that the points not argued are considered to have been waived. We also agree that the burden is on the plaintiffs to show affirmatively by the record that the judgment is manifestly against the weight of the evidence and that this court is not required to search the record to find reasons for reversing the judgment. We are also in agreement that the happening of an accident raises no presumption of negligence on the part of a defendant. The court submitted 11 forms of verdict covering all possible findings that the jury might make by reason of the fact that there were two plaintiffs and two defendants. Plaintiffs do not argue that there was any impropriety in the manner in which the forms of verdict were submitted to the jury. .

Everett Hoppe, called as an adverse witness, testified that it had been drizzling slightly; that he did not have the windshield wiper on; that it was not raining “at the moment”; that he stopped his car before crossing Halsted street; that he looked both ways; that his car stopped not more than three seconds; that he could not state exactly, “but I paused”; that there was no automobile in front of him; that he was traveling east toward Halsted street and saw a motor vehicle to, his right, which was to the south of Willow street; that this automobile was going north, and that the distance from Willow street to North avenue is two blocks. He thought that the car going north was a little bit less than half of the distance away; that “the right front side of my car came into collision with the cab and there were also some marks on the back bumper and the right front fender. There was a slight indentation on the back, at the time of the collision the left front bumper and fender of the cab met on my car, mostly the right front door, the right front fender and there was a slight mark on the right back fender and the front radiator was not hit at all.” He had been driving for about seven years. He did not look at the cab with the idea of noting the speed. He looked at the cab “with the idea of noting the distance and the safety of getting across the street.” He did not look to watch the cab as he (witness) was crossing the street. He “did not think it was necessary.” He could not tell the speed of the cab immediately before striking his car. He could calculate the speed of the cab by the force with which it hit his car and by the distance his car was moved after the accident. After the collision his car was on the north side of Willow street between the building line and the curb on the east side of Halsted street and facing in a northeasterly direction. Witness’ car was east of Halsted street on Willow street and on the northern half of the street, the front part of the car being on the east side of the' building line. The east sidewalk of Halsted street from the curb to the building line is about 14 or 15 feet. The hood and part of the front of the car was on the east side of the building line. The cab was on the south side of Willow street. The cab was turned around the corner facing east on Willow street about half way between the east curb of Halsted street and the building line. The front of the cab was just opposite the crushed in front door of witness’ car after it came to a stop, about four feet south of witness’ car. Witness’ car was ahead of the cab. Witness did not see the cab immediately before the collision. He estimated that from North avenue to Willow street is “possibly 800 feet or something like that.” He testified that the vehicle which he later identified as the cab, was about 400 feet from Willow street when he stopped his car completely at the intersection. He also testified that at that time the cab was about three quarters of a block away, perhaps 300 feet; that he might have had his car rolling very slowly as he approached Halsted street; that he “came to a stop practically and perhaps rolled a few inches, had time to look up and down the street and then seeing nothing within a dangerous distance I put the car in first again and proceeded across the street. I saw headlights.” In answer to the question: “Then you did not see the automobile that you say you saw there at the south, or the Checker Cab, with which your automobile collided until after the impact1?”, he answered: “That is correct.” The dis-tance between the place where witness’ car stopped prior to the impact and the east curb of Halsted street is about 25 feet. He was pretty sure the impact occurred in Willow street. ■ Witness testified that his automobile was moving in an easterly direction at the time of the impact at,about 10 or 12 miles an hour. Automobiles were parked on both sides of Halsted street south of Willow street. After the collision witness got out of his automobile and saw the cab, which had the dim lig*hts on.

Samuel Morici, Jr., a witness called by the Checker Taxi Company, testified that after plaintiffs got into his cab he drove north on Halsted street; that “it was dry weather”; that they told him to drive carefully; that his cab was straddling the east rail of the street car tracks; that as he approached Willow street he noticed parked cars; that he was going between 15 and 20 miles an hour; that he did not go any faster. The Hoppe car was being driven east on Willow street, about 20 feet west of Halsted street when witness first noticed it, and was traveling at a speed of 35 to 40 miles an hour. In answer to a question as to where the cab was at the time Morici noticed the other automobile, he answered, “On Halsted Street.” Asked, “Where; with reference to Willow?”, he answered, “Willow, just turning.” Witness further testified that he swung his cab to the right and the driver of the other car “hit his right fender with my left fender and wheel”; that he (witness) stopped his cab in about two or three feet and the driver of the other car stopped in about 20 feet; that he (witness) stopped at the point of impact. The witness directed that plaintiffs be taken to St. Joseph’s Hospital in another cab. The witness ’ cab had a green light in front and two other green lights in addition to the dim lights. All were lighted. When he saw the car he tried to turn out of the way at a speed of 15 to 20 miles an hour. The cab had a glass partition separating the driver’s seat from the passengers, and it is necessary for the driver to turn around and open this partition in order to open or close a window in the rear. He testified that he did not lower or raise a window of the cab.

Mrs. Regina Louis, who will be 48 years of age on March 29, 1943, testified that the windows of the cab were open; that it was drafty; that she started to close a window; that the cab was then about half a block north of North avenue; that as the cab approached Willow street the driver tried to assist her with one hand; that he had one hand in back and the other on the wheel and “by the time he got his hand back we had collided already.” Witness stated that the window on the right hand side was open. She testified that the driver of the cab was going at a “pretty good speed”; that when the cab came to Willow street there was a collision; that witness was just looking ahead; that “we both swerved off of Willow and the other car was going east.” She fell forward and hurt her right foot, ankle, shoulder, arm and back of her neck. Mrs. Witte fell over Mrs. Louis’ leg and was thrown to the bottom of the cab. Her head struck the front seat and she (Mrs. Witte) seemed to be knocked out. Witness did not see the other car before the collision “until we came close to'hitting.” The cars wound up on Willow street. Witness stated that '‘both cars swerved, one car had gone east on Willow street and the cab had to turn off with him on Willow”; that she could not open the door because Mrs. Witte was laying on top of her, and that she attracted the driver’s attention by knocking on the cab door. She denied having any conversation with the cab driver about how to drive. When she first noticed the east bound car it was crossing the tracks. Mrs. Myrtle Witte, 57 years of age at the time of the trial, testified that the cab man was driving at a normal speed; that she was knocked to the bottom of the cab and rendered unconscious; that she was taken to the hospital; that she was sick to her stomach, nervous and upset. She testified about her injuries, the -treatment given to her and alleged loss of earnings due to her injuries.

Helen Mandik, the girl friend of Everett Hoppe, testified that she was riding on the front seat between Hoppe and his mother; that it was raining at the time of the accident, “just a slight drizzle, sort of misty. Everett was going east on Willow; and when he came to Halsted street he stopped the car and looked both ways. I glanced right and left and south, did not see anything, no traffic could be seen down Halsted five or six houses. . When we stopped I could not see any car coming; the stop did not take long; it did not take five minutes, just long enough to look both ways. He shifted and started on his way. He started slowly, in the middle of the street, I noticed this cab. Our car was in the middle of the car tracks, the cab was about three houses or so down the street coming out at a pretty fast rate of speed. The cab was going about thirty-five, that is my best judgment. The cab did not have bright lights, they were dim. At the time I saw the cab our car was going. about ten miles. I glanced again as we started to cross the street and the cab was coming, then it struck us; our car was just a little past the east crosswalk when it was struck; it jolted and then skidded a little to the north curb. Saw the two ladies at the hospital, the smallest woman, Mrs. Witte, was having her knee fixed at the hospital. Mr. Hoppe did not cross the intersection at thirty-five to forty miles an hour.” She further testified that the cab had its lights on and that she could see it was a cab. Defendant Hoppe introduced the United States weather report, which showed that at 1:00 a. m. on March 29, 1940 the temperature was 54 degrees, and at 2:00 a. m. 56 degrees. On the 28th between 11:22 and 11:27 p. m. there was rain, and on the 29th from 12:37 to 12:49 a. m. there was rain. The exhibit also shows the following as to these hours: “Water less than .005 of an inch, a trace.” Mrs. Hoppe, wife of the individual defendant and mother of Everett Hoppe, testified that she did not see the cab with which the automobile in which she was riding, collided; that when her son got to the intersection he stopped “to look both ways and started slowly across Halsted street. Everett did not drive across the intersection at a speed of thirty-five or forty miles an hour.” In view of the conclusion reached, it will be unnecessary to consider the medical testimony.

We agree with defendants that the burden was upon plaintiffs to prove their case by a preponderance of the evidence, and that this is not a res ipsa loquitur case. The driver of the car proceeding easterly on Willow street testified that it was not raining at the time of the occurrence. He is contradicted in this by Miss Mandik, who testified that there was a slight drizzle at the time. He stopped his car momentarily at Halsted street, or at least slowed it down so that it was rolling slowly. He looked up and down the street and saw the automobile which later was identified as the cab, approaching on Halsted street from the south. At the time he saw the cab (which he did not know at that time was a cab) it was .three quarters of a block south of Willow street, or 300 or 400 feet. He did not look to observe the cab while it was approaching the intersection and while he was proceeding across. Halsted street. He did not think it was necessary to look. His car was moving in an easterly direction at the time of the impact at a speed of 10 or 12 miles an hour. He saw the headlights on the cab when it was three quarters of a block away and there was no traffic on Halsted street between the' approaching cab and Willow street. Apparently, Hoppe was not aware of the imminence of a collision previous to the impact. He did not testify as to the speed of the cab. It would be difficult for him to so testify in view of his statement that he did not watch the cab as he was crossing the ■ street, and that he did not think it was necessary to do so. Miss Mandile corroborates him in his statement that he stopped at Halsted street. She testified that when the front part of the car in which she was riding was at the west rail of the southbound street car tracks, the cab was about three houses or so down the street coming at a pretty fast rate of speed; that the cab was coming at about 35 miles an hour; that the car in which she was riding was traveling about 10 miles an hour; and that the car was struck by the cab when “it was a little past the east crosswalk.” Mrs. Hoppe corroborated her son in his testimony that he stopped at the intersection and said that he did not drive across it at a speed of 35 or 40 miles an hour. Morici, the cab driver, stated that the partition between himself and the passengers was closed; that he was not requested, nor did he attempt to open a rear window with one hand while driving with the other hand; that plaintiffs requested him to drive carefully; that he was traveling between 15 and 20 miles an hour; that when he saw the eastbound car it was on Willow street 20 feet west of Halsted street; and that it was traveling at a speed of 35 or 40 miles an hour. In order to avoid a collision he swung to the right, or in an easterly direction, and stopped in two or three feet. Evidence on behalf of John Hoppe tended to show that the car being driven by his son stopped at the intersection and then proceeded at a speed of 10 or 12 miles an hour, while the cab was being driven at a speed of 35 to 40 miles an hour. It was contended by the corporate defendant that the cab driver was driving north on Halsted street at a speed of 15 or 20 miles an hour, and that the Hoppe car was traveling east on Willow street at a speed of 30 to 35 miles an hour. On a retrial it will be for the jury to say whether plaintiffs were in the exercise of due care and caution at and immediately before the time of the collision. The fact that one of the plaintiffs requested the cab driver to close the window certainly would not show that either plaintiff failed to exercise due care. It appears to us that 12 reasonable men and women would find it difficult to say that the plaintiffs were guilty of contributory negligence. If the jury found defendants not guilty on the basis that plaintiffs were guilty of contributory negligence, we are satisfied that such finding is contrary to the manifest weight of the evidence.

Everett Hoppe saw the cab approaching the intersection. At that time the cab was three .quarters of a block away. According to Hoppe’s testimony, the car he was driving was traveling at a speed of from 10 to 12 miles an hour. According to the testimony of Miss Mandik, the cab was traveling “at a pretty fast rate of speed,” or about 35 miles an hour. Although Hoppe had driven a car for seven years, he did not testify as to the speed at which the vehicle from the south was approaching. Hoppe testified that he did not watch the cab as he (Hoppe) was driving across Halsted street and that he did not think it was necessary. It is difficult to understand how a jury could find Hoppe not guilty under the evidence presented. Morici testified that when he saw the Hoppe car it was moving east on Willow street about 20 feet west of Halsted street at a speed of 35 or 40 miles an . hour, and that the cab was proceeding at a speed of ' 15 or 20 miles an hour. As the Hoppe car continued to proceed in an easterly direction at this speed, the cab driver did not slacken the speed of his cab, and to avoid a more serious collision it was necessary for him to swerve to the east. If he had his cab under control and was observing the car approaching from the west, the jury would have the right to say that he could have stopped his cab before the impact. There is no testimony that either driver sounded his horn, although that point is not raised. The corporate defendant owed to the plaintiffs a duty to exercise the, highest degree of care and caution consistent with the mode of conveyance and the practical operation of the cab, and it was the duty of the individual defendant acting through his son, to exercise ordinary care in the operation of his automobile. We find that the judgment is manifestly against the weight of the evidence as to each defendant. Accordingly, the judgment of the superior court of Cook county is reversed and the cause remanded with directions to allow plaintiffs’ motion for a new trial and for further proceedings.

Reversed and remanded with directions.

Hebel and Kiley, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Grover R. Lutgert, Trading as Lutgert Bros., Appellee, v. Fred Schaeflein et al. Appeal of Frank Wippel and Helen Wippel, Appellants.
    Gen. No. 42,414.

      Opinion filed March 10, 1943.
    Frisch & De Haan, of Chicago, for appellants; George J. Fox, of Chicago, of counsel.
    Rudolph L. Johnson, of Chicago, for appellee; Rudolph L. Johnson and Cecil L. Cass, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Grover Lutgert, doing business as Lutgert Bros., filed his statement of claim in the municipal court of Chicago against Fred Sehaeflein, asking judgment in the sum of $283.95 for coal, coke, scaffold horses and brick sold in 1938, 1939 and 1940. Included in the articles sued for were certain bricks used in the construction of a building for Frank Wippel and . Helen Wippel, husband and wife. Subsequently, defendant Fred Sehaeflein, upon order of court, impleaded Frank Wippel as third party defendant. Fred Sehaeflein filed his statement of claim against Frank Wippel and alleged that he entered into a contract with Wippel for the furnishing of labor and materials

\ for the mason work required for the construction of a building at 3901 W. 60th place, Chicago; that he, Schaeflein, performed all of the work and furnished all of the materials required and called for by the contract; that there was due to Schaeflein from Frank Wippel, under the terms of the contract, the sum of $240, being $200 for brick and $40 for an iron rail furnished and installed in the premises; and he asked judgment against Wippel in the sum of $240. The third party defendant, Frank Wippel, and his wife, Helen Wippel, pursuant to the prayer of a petition and an order of court, filed a counterclaim against the defendant, Fred Schaeflein, and against the original plaintiff, Grover Lutgert, for damages of $3,000, alleged to have been sustained by reason of the furnishing and installing of defective bricks in the building at 3901 W. 60th place, Chicago. All three claims were tried together before the court and a jury. Verdicts were directed .in favor of Schaeflein for $240 in the issue between him and Frank Wippel and in his (Schaeflein’s) favor and against the Wippels in their counterclaim against him. Two remaining issues were submitted to the jury, namely, the one between the original plaintiff, Lutgert, and the defendant, Schaeflein, wherein Lutgert claimed $283.95, and the other between the counter-plaintiffs, Frank and Helen Wippel, and Lutgert in the sum of $3,000. On the issues between the original plaintiff Lutgert and the original defendant Schaeflein, the jury returned a verdict for plaintiff in the sum of $75. On the issues between counter-plaintiffs Frank and Helen Wippel and the original plaintiff Lutgert the jury returned a verdict for $2,500 in favor of the counter-plaintiffs Frank and Helen Wippel. A motion for a new trial filed by Lutgert was sustained. This court allowed the petition of counter-plaintiffs Frank and Helen Wippel for leave to appeal from the order granting a new trial.

The issues in the ease arose out of the construction of a two story dwelling at 6038 S. Springfield avenue, Chicago. This lot is also known as 3901 W. 60th place, at the southwest corner of Springfield avenue- and 60th place. Counter-plaintiffs entered into various contracts for the construction of the house. Frank Wippel had been in the building construction business for 15 years and had built about 300 buildings. He erected eight other buildings in the same block, six for other owners and two for himself. He erected 35 or 40 buildings in that vicinity. Plaintiff Grover E. Lutgert is a wholesale dealer in bricks, doing business in Chicago. He is also in the coal business. He furnished certain coal, building materials and bricks to Fred Sehaeflein and asked judgment for a balance of $283.93 for these items. The bricks alleged to have been furnished were used in the construction of the dwelling being erected for Frank and Helen Wippel. Fred Sehaeflein was the mason contractor and claimed a balance of $240 from Frank Wippel on the contract. Sehaeflein joined Frank Wippel as third party defendant to recover this balance due him and the Wippels thereupon filed a counterclaim against Sehaeflein and Lutgert for alleged damages in the sum of $3,000, sustained through the furnishing and installing of defective bricks.

Prior to the commencement of the construction, Dick Helwig, a salesman of Lutgert, called on the Wippels and exhibited to them samples of various kinds of face brick and quoted them prices. The Wippels chose a type of brick known as Veeclerburg Colonial Buff at a cost of $25 per 1,000 in carload lots. This brick seemed suitable to them and they arranged for a full carload, to be used on three sides of the proposed building. Sehaeflein was directed by the Wippels to secure these Veederburg bricks from Lutgert. The bricks were delivered in January 1940, and the building was completed in May 1940. Within a month or two after being installed in the building, nearly all the bricks became white in color and large numbers of them began to deteriorate, crack and crumble and the faces to break off. Numerous of these defective bricks were removed and replaced, in which operation the plaster on the inside walls was cracked and the decorating damaged. At the time of the trial numerous bricks were still crumbling and the building-was still discolored. Testimony by one witness was that the only satisfactory way to repair the building would be by removing the entire layer of face brick and replacing with proper brick at an estimated cost of $3,000 and another witness testified that such cost would be $2,500. These witnesses further estimated the difference in the value of the house as constructed with the bricks as furnished, and if constructed with proper bricks, would be $3,000 and between $2,000 and $2,500. Testimony was given that the counter-defendant Lutgert knew at the time of the sale and delivery of the bricks that they were inferior and defective, and admitted that they were. No testimony in rebuttal of this evidence was produced, although three men who were present at the conversation appeared as witnesses in the case. The trial was primarily on the issues, as fixed by the counterclaim, very little time being spent or testimony taken on the other issues. The trial court permitted testimony to be given as to the value of the building and gave the instructions requested by the counter-plaintiffs on the measure of damages and sale by sample. Upon argument on the motion for a new trial, the trial judge held that the instruction he had given relative to the measure of damages was erroneous, and further stated that he felt the issues presented by the case were too complicated for the jurors’ comprehension.

Where there is a conflict in the evidence as to the facts, the granting of a new trial is within the trial court’s discretion and will not be disturbed unless abused. However, the correctness of a ruling on a question of law will be determined on appeal independently of the judgment of the trial court. 5 C. J. S., sec. 1620; Randall v. Randall, 281 Ill. App. 169. The following statements were made by the trial court, as to the reason for granting the motion for a new trial:

“I think I was in error in the rule of damages applied. I think the verdict is excessive. I don’t think the measure of damages, was proper. I know of no rule or law that would permit a man to recover damages where the brick has been put into a building and something has happened as happened in this case. The case was mixed up badly by the fact of having three separate and distinct claims for the jury to decide. It was never contemplated in my mind that Lutgert should be held accountable for damages of this nature. I don’t think the claims should have been decided together. Two simple little contract claims for small amounts tied up with quite a claim for damages. I think I will let this case against Lutgert for damages be tried alone. ... I never anticipated such a result at the start of the case. It started with a little simple suit and winds up with a considerable verdict. Lutgert didn’t seem very much concerned about it. I noticed his attitude in court. He seemed to think it was a nickel and dime proposition. ... It is strictly a sale by sample — all hands agree on that. It is a sale by sample and an obvious breach of contract. I might say for the purpose of argument that the contract was breached, that the bulk did not correspond with the sample. These are the facts in the case— now what is the measure of damages. The facts show that the brick in question did not correspond with the sample; were used in the construction of the building and began to peel and crack and it is evident that the value of the building was less, but the bricks were used and there was never any offer to return them or anything like that. The contractor had nothing to do with picking out the brick and could not, as far as I can see, be held responsible. Undoubtedly, the bricks peeled, there is some question of that, but the jury decided that. I would not disturb the question of fact that the jury decided. The only thing I am concerned about is: Did we give them the proper measure of damages? I do not quarrel with the verdict of the jury. As the instructions went, I think the verdict was all right. ... I have come to the conclusion that"! should grant a new trial in this case. I think the court committed error in the charge to the jury and I think it was partly due to the fact that it was a counterclaim which became mixed up with a simple contract suit and so the issues became confused. I think that the jury was prejudiced on this contract claim. I believe that I committed error. I was about to direct a verdict but I thought it would be better to have a jury verdict than a directed verdict. ... I feel that the case was decided in connection with a simple contract suit, and that the jury was prejudiced by the evidence they heard in that case, which had no application to the counterclaim. I had three separate cases before the jury. I directed the verdict in on and I submitted it to the jury in the two others and so the issues became a little confused, in my opinion.”

The attorney for the counter-plaintiffs then stated: “Will your Honor specifically state for the record, your reasons for granting a new trial. I understand the Appellate Court likes to have them when they consider a motion for a new trial. Do you feel that the instruction on the measure of damages was improper?

The court replied, “I do.” The attorney then stated: “Do you feel that the measure of damages in a case of this kind is only the difference in the price of the article, if it had been as supposed to have been purchased? The difference in the value of these bricks, if they had been good bricks ? The trial judge said: “I think that is the proper measure of damages, yes, in a case of sale by sample.” The court stated further:

‘11 think there should be a new trial which could be had without the confusion that was caused by a simple contract issue along with this claim for damages. The jury became confused and prejudiced by the evidence in une case which had no application whatsoever on the claim for damages.”

It will be observed that the trial judge stated that the transaction constituted a sale by sample and that the evidence showed “an obvious breach of contract.” He also found that “the brick in question did not correspond with the sample”; that the bricks were used in the construction of the building; that they began to peel and crack and “it is evident that the value of the building was less.” The record clearly shows that the new trial was not granted because the verdict was contrary to the manifest weight of the evidence. The trial judge expressly stated that he “would not disturb the question of fact that the jury decided.” He allowed the new trial because he felt that the instruction he had given relative to the measure of damages was erroneous and the issues presented by the case too complicated for the jurors’ comprehension. The court instructed the jury that “in the case of a sale by sample, if the seller is a dealer in goods of the kind in question, there is an implied warranty that the goods shall be free from any defect rendering them unmerchantable, which would not be apparent on reasonable examination of the sample.” Lutgert urges that it was error to give this instruction because there was no evidence that the bricks delivered did not correspond to the sample in quality. He also urges that as the purchasers had an opportunity to inspect the bricks, there was no sale by sample and that there can be no recovery on the ground of warranty. The testimony shows that the bricks were purchased from the sample. Lutgert admitted in Ms affidavit of defense that the sale was a sale by sample. In arguing for a new trial, his counsel stated that “I think we are in accord on the fact that the bricks were sold from a sample, our whole defense was that the brick was as per sample and there was nothing defective.” In our opinion, the transaction was “a sale by sample.” As to the contention that the Wippels had full opportunity of determining for themselves the quality of the bricks, the record shows that the only opportunity for inspection came after the bricks were delivered to the job. Some of the bricks were found to be chipped and this was the only defect called to the attention of the Wippels. The testimony shows that the chipped bricks were not used in the construction of the building by direction of Lutgert’s salesman, Helwig. The bricks thus rejected could not have contributed to the breaking away and spalling which occurred after the building was constructed. Plaintiff was a dealer in bricks. The bricks did not correspond with the sample in quality. They were defects which, on testimony of plaintiff’s own witness, could not be discovered except by an expert brick man. The instruction on sale by sample follows the language of section 16 of the Uniform Sales Act (sec. 16, ch. 121%, 111. Rev. Stat. 1941 [Jones 111. Stats. Ann. 121.20]). We are of the opinion that the instruction was applicable to the facts of the case and that it correctly stated the law.

The court also instructed the jury that “in the ■ event you find for the counter-plaintiffs, Frank Wippel and Helen Wippel, you then should consider the question of their damages, and in considering the amount of their damages you are instructed that the measure of the damages is the difference between the value of the building as constructed and the value of the building as it would have been had bricks of proper manufacture and ingredient been used, or in the alternative, if .you find that the bricks were defective, the measure of damages shall be the cost of replacing the defective bricks with bricks of proper manufacture and ingredient, whichever amount shall be the lesser.” The trial judge believed that in giving this instruction he committed error. In fixing the amount of damages it is evident that the jury followed this instruction. Paragraph 6 of section 69 of the Uniform Sales Act (sec. 69, ch. 121%, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 121.73]) provides that “the measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary cause of events, from a breach of warranty.” The trial judge felt that the correct measure of damages would be the cost price of the bricks. It is apparent that to permit a recovery of but the cost of the bricks ($362.50) would fall far short of compensating the Wippels for the damages sustained. There is abundant evidence that the bricks peeled off or spalled, which not only resulted in a most unsightly appearance, hut weakened the building and made it extremely difficult if not impossible to sell. The evidence is uncontradicted that to repair the building would necessitate the removal and replacement of the outer layer of face brick, an arduous and costly undertaking, involving probable damage to the interior. We agree with the Wippels that the cost price of the brick would not be a fair or adequate amount to compensate for the actual damages, shown by the uncontradicted testimony to be between $2,000 and $3,000. The breach of the implied warranty, together with special circumstances showing damages of a large amount, which directly and naturally resulted from the breach, has been proven and the measure of damages therefore comes within the terms of the statute. In the case of Krone Die Casting Co. v. Do-Ray Lamp Co., Inc., 297 Ill. App. 602, 617, in discussing the rule as to the measure of damages, we quoted with approval from 2 Sedgwick (8th ed.) 479, sec. 766:

“ ‘Where an article is warranted fit for a particular purpose, the purchaser can recover the damages . caused by an attempt to use it for that purpose. This sometimes gives a larger measure of recovery than would be allowed under the ordinary rule. Where the chattel sold has different values, according to the usé for which it is intended, the value which measures the damage is that which the vendor represented it to have with reference to the purpose to which he knew it was to be applied by the vendee.’ ”

We are of the opinion that the instruction as to the measure of damages correctly stated the law under the circumstances disclosed by the evidence. Lutgert contends that the instruction was erroneous for the further reason that there is no implied warranty as to quality by a vendor who is not a manufacturer, citing Dravo Doyle Co. v. Sulzberger & Sons Co., 197 Ill. App. 547. That case did not involve a sale by sample. In the case at bar the Wippels relied on a sale by sample under the provisions of section 16 of the Uniform Sales Act providing that there is an implied warranty that the goods shall be free from any defect rendering them unmerchantable, which would not be apparent on reasonable examination of the sample. The rule stated in the Dravo case is not applicable to the factual situation before us.

We are of the opinion that the trial judge did not err in giving the two instructions which he later found were erroneous.

The only other ground for granting a new trial was that the court felt that the issues presented were too complicated for the jurors’ comprehension. The rules of the municipal court of Chicago expressly give a defendant the right to serve a “third party claim” upon a person not a party to the action who is or may be liable to the defendant or to the plaintiff for all or part of plaintiff’s claim against the defendant. (Rule 25.) The Civil Practice Act likewise permits the making of any party defendant who is alleged to have or claim an interest in the controversy, or in any part thereof, or in the transactions out of which the same arose. Section 24, Civil Practice Act (sec. 148, ch. 110, 111. Rev. Stat. 1941 [Jones 111. Stats. Ann. 104.024]). Lutgert sued Schaeflein and the latter brought Frank Wippel into the case. The Wippels then filed a counterclaim against both Schaeflein and Lutgert. It cannot be doubted that a person brought into a lawsuit on the theory of securing complete determination of all issues arising out of the transaction, has the right to proceed by counterclaim against the original plaintiff or the original defendant or both if the nature of his claim so warrants. The court has ample power to order separate trials where the trial of all the issues presented by the various parties might tend to confuse the jury. In the instant case all of the parties and the trial judge apparently believed that the issues were not complicated and that the jury would understand the respective contentions. All of the parties willingly submitted the issues to the jury. It will be recalled that the court directed a verdict on the claim of Schaeflein against Frank Wippel and also directed a verdict for Schaeflein on the counterclaim of the Wippels on the ground that the sale of the bricks had been solicited and made directly from Lutgert to the Wippels. The case submitted to the jury presented two issues, the claim of Lutgert against the original defendant for $283.95 on which a verdict was returned in favor of plaintiff for $75, and the claim for damages by the Wippels against Lutgert. Most of the testimony related to this claim. In our opinion the issues presented to the jury were not complicated. They were simple issues which men and women of reasonable intelligence would understand. The record presents a case where the • trial judge granted a new trial because he believed he erred in instructing the jury and because he felt the issues were so complicated that the jurors were confused. We. find that the trial judge did not err in instructing the jury and we are satisfied that the issues were not complicated. The parties apparently recognized this as they did not suggest to the court that there should be a separate trial on any of the issues.

For the reasons stated, the order of the municipal court of Chicago granting a new trial is reversed, and the cause is remanded with directions to enter judgment on the verdict.

Order reversed and cause remanded with directions.

Hebel and Kilby, JJ., concur.


author: Mr. Justice Hebel

text:
    James F. Donn, Trading as South Shore Finance Company, Appellant, v. Auto Dealers Investment Company, Appellee.
    Gen. No. 42,214.

      Opinion filed March 10, 1943.
    Rehearing denied March 29, 1943.
    Green, Shapiro, Hatowski & Green, of Chicago, for appellant; Harold J. Green and Jules R. Green, both of Chicago, of counsel..

      Hopkins, Sutter, Halls & De Wolfe, of Chicago, for appellee; Anderson A. Owen and William Q-. Blood, both of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

It appears from the record in this case that on May 25, 1939, the plaintiff and Bussell Walter filed a declaration of intention with the then Secretary of State of Illinois that they expected to engage in trust receipt financing of used automobiles, the plaintiff to be the entruster and Walter the trustee. This statement of intention complied with the statute and no question is raised by the defendant .with reference to its propriety. The plaintiff and Walter did subsequently engage in a continuous course of trust receipt financing. Subsequently, about three months later, on August 16, 1939, the defendant and Walter also filed with the then Secretary of State of Illinois their declaration of intention to engage in trust receipt transactions of used automobiles, with the defendant, as entruster, and Walter as trustee.

After August 16,1939, both the plaintiff and defendant were engaged in trust receipt transactions with Walter, each apparently having no actual notice of the other’s transactions. Then, in the course of the continuous dealings engaged in by the plaintiff and Walter, the said Walter submitted to the plaintiff trust receipts involving' certain automobiles. The plaintiff, having no actual knowledge of any other transaction involving these automobiles and being well within the one year period of his filing, advanced the requested money to the said Walter.

• It also appears from the record that prior to this particular trust receipt transaction but after the original filing by the plaintiff, the defendant advanced money to Walter on the identical automobiles which were the subject matter of the plaintiff’s trust receipt transaction. On default by Walter, in paying, the defendant took possessio'n of the automobiles. Plaintiff notified the defendant of his claims to the automobiles in controversy, which defendant denied, stating that defendant’s rights were prior to the rights of the plaintiff. Defendant sold the automobiles at a public-sale for $2,300 and applied the proceeds on its debt. They were sold to one Fred Girard who, in turn, resold some of them to the plaintiff. Neither Walter nor anybody on his behalf paid to the plaintiff the amount of money which he had advanced to Walter on trust receipt, which advances amounted to $2,240, so that there is presently due and owing from Walter to the plaintiff $2,240, with interest thereon from January 1940. The plaintiff sued the defendant for conversion.

The plaintiff contends that by virtue of his prior filing of his declaration of intention to engage in trust receipt transactions with Walter, with the Secretary of State, in compliance with the Uniform Trust Receipts Act (Smith-Hurd’s Ann. Stats., ch. 121%, sec. 178 [Jones 111. Stats. Ann. 135.17 (13)]), the plaintiff acquired an inchoate security interest or inchoate lien for one year on Walter’s automobiles, which interest or lien was perfected when those automobiles became the subject matter of a trust receipt transaction between him and Walter within that year; and that the perfected interest or lien attached as of the date of the original filing under section 178 of the act.

It is claimed by the plaintiff that the filing with the Secretary of State under section 178 of the act constituted constructive notice to the defendant and to all subsequent entrusters of his right to perfect his inchoate security interest or inchoate lien on Walter’s automobiles by advancing money thereon and accepting trust receipts therefor at any time within one year from the date of his filing.

The defendant, in reply to plaintiff’s contention, suggests that the date which determines the priority of plaintiff’s and defendant’s claims is the date of the extension of credit as shown by the individual trust receipt, irrespective óf the date of the original filing with the Secretary of State. Defendant also contends that the plaintiff is estopped by virtue of his conduct.

The commissioners who drafted the Uniform Trust Receipts Act appended an explanatory note thereto. Their statement shows that they recognize the desirability of the trust receipt as a security device and also recognize the unfairness to other creditors of giving the entrustar a secret lien for an indefinite period of time. On page 298 of the cumulative annual pocket part of volume 9 of Thompson’s Uniform Laws Annotated, in discussing this problem they say as follows :

“On the other hand, where the trust receipt is held effective without recording, other creditors of the dealer are given no notice at all that his stock in trade and accounts receivable are subject to a prior lien to some financier which in the very case of need (to wit, drop in market followed by dealer’s insolvency) is likely to exhaust the dealer’s total assets.

“But for about a decade Ohio has been working with a statute along a line which satisfied not only the needs of business, but the needs of the financing agency, and the needs of other creditors. What is put on public record is not notice of lien on individual chattels, but notice that trust receipt financing of a dealer is, as to a given type of goods, being carried on by a named financier. That is all a creditor needs to know: it tells him not to rely on any merchandise of that description in the dealer’s hands.”

It is obvious that the commissioners sought to retain all the flexible advantages of the trust receipt as a security device and at the same time sought to eliminate its disadvantages which were primarily the secret lien which the entruster was given, and the opportunities for fraudulent manipulation which were presented.

Accordingly, we now discuss section 178 of the Illinois act, which is the only section in the entire act pertaining to recording, the material portions of which are as follows:

“Section 178 — Filing and Re-Filing Concerning Trust Receipt Transactions Covering Document or Goods.

“(1) Any entruster undertaking or contemplating trust receipt transactions with reference to . . . goods is entitled to file with the Secretary of State, a statement, signed by the entruster and the trustee containing: (a) a designation of the entruster and the trustee, and of the chief place of business of each •within this State . . . ; (b) a statement that the entruster is engaged, or expects to be engaged, in financing under trust receipt transactions the acquisition of goods by the trustee; and (c) a description of the kind or kinds of goods covered or to be covered by such financing.

“ (2) (This section prescribes a form of statement of trust receipt financing which' provides that the type of goods should be generally described, such as coffee, silk, automobiles or the like.)

“(3) It shall be the duty of the filing officer to mark each statement filed with a consecutive file number and with the date and hour of filing . . .; and to note and index the filing . . . according to the name of the trustee. . . .

“(4) Presentation for filing of the statement described in subsection one . . . shall constitute filing under this act in favor of the entruster, as to any . . . goods falling within the description in the ■ statement which are within one year from the date of such filing, or have been, within thirty days previous to such filing, the subject-matter of a trust receipt transaction between the entruster and the trustee.”

So it is urged by the plaintiff that it is clear from the facts as they appear in this act that filing of the trust receipt under this act is accomplished not by filing an individual trust receipt or copy thereof but by filing the statement prescribed by section 178 of the act, subsections (1) and (2). Subsection (4) hereinabove set forth clearly shows that an entruster, in order to secure the protection afforded by this act, need only file once, and such filing is good for one year as to goods which are described in the statement of intention and which become the subject-matter of a trust receipt transaction within the year. And the theory that this is the correct interpretation of the section, is borne out by the commissioners’ prefatory note hereinabove referred to wherein they state under their general theory of the act, as follows:

“4. The act provides for a type of filing which is convenient, cheap, and effective. The filing reveals all that a prospective creditor of the dealer needs to know, but reveals nothing more than that. Sec. 13.

“5. The act provides for centrally accessible filing in a single office for the entire State. This is vital to the policy of simplifying the filing provisions and to making the information readily and certainly available without expensive search. Sec. 13 (1).”

Bearing the above in mind, we apply the statute to the acts of the parties hereto and to the facts in the case at bar which are admitted by stipulation. It is admitted that the plaintiff properly filed on May 25, 1939 and engaged in trust receipt transactions with Walter to October 1939. However, it was unknown to the plaintiff that on August 16,1939 the defendant also properly filed under this section of the act and engaged in trust receipt transactions with Walter from August 16, 1939 to October 30, 1939. It appears that during October 1939, the plaintiff advanced moneys on trust' receipt on certain automobiles which Walter had theretofore pledged by trust receipt with the defendant.

The question to be determined seems to be which rights are superior in the automobiles in question.

The plaintiff contends that since he filed the statement prescribed in section 178 of the act on May 25., 1939, which statement disclosed that automobiles would be the subject matter of his transactions and, since his advances were made from May 1939 to January 1940, they were made well within the one-year period described by subsection (4) of the act, and therefore the plaintiff contends that, having complied in all due respects with every provision of the act, his security interest in, or right to, the automobiles in controversy is paramount to that of the defendant.

On the other hand, the defendant argues that since the trust receipt is a security device, the lien is only created at the time money is actually advanced and that, since it advanced money to Walter on these particular automobiles before the- plaintiff did, that its claim is paramount to the plaintiff’s claim.

In the case of Middleton v. Commercial Investment Corp., 301 Ill. App. 242, this court said:

“It seems to us it is immaterial whether this statement of the trust bears the file mark of the Secretary of State. It was on file in the Secretary of State’s office, which was notice to the public generally that the Commercial Investment Corporation ivas doing business with the Wendel Motor Sales.”

The plaintiff further contends that he could deal with Walter’s automobiles on the assumption that he was the only entruster engaging in trust receipt transactions with him, until and unless he received actual personal notice that the defendant was also an entruster.

It would appear that in the trial court it was argued that if the plaintiff’s filing on May 25, 1939 constituted notice to the defendant, conversely the defendant’s filing on August 16, 1939 constituted notice to the plaintiff. This, according to the plaintiff’s theory, is not true. It is elementary that recording acts are prospective and not retrospective. The obvious purpose of any recording act is to give subsequent persons an opportunity of ascertaining the status of title to property whether it be real or personal property. Once a person records a deed or mortgage on real estate or a chattel mortgage on personal property, he need no longer look to the record to see what documents are subsequently recorded against it — his rights are fixed and are determined as of the date of his recording. In support of his theory, plaintiff calls our attention to 23 E. C. L. 212, sec. 72, where the rule is enunciated as follows:

“Prior Parties — Neither the language nor the policy of the registry acts was intended to affect the holders of antecedent rights, but only such persons as are compelled to search the records in order to protect their own interests. Accordingly, the universal rule is that the record of an instrument is constructive notice to subsequent purchasers and incumbrancers only and does not affect prior parties.”

In the case of Boone v. Clark, 129 Ill. 466, 482, upon a like question, the court said:

“It is also to be borne in mind, that the record of a subsequent deed or mortgage is not notice to the prior mortgagee; nor is the latter required to search the records, from time to time, to see whether other incumbrances have been put on the land; and one interested in the equity, as subsequent purchaser, mortgagee or lienor, wishing to protect himself, must bring home to the first mortgagee actual notice of his equities.”

So that, from the facts as they appear in the record in the instant case, when plaintiff on May 25,1939 filed with the Secretary of State his statement of intention to engage in trust receipt transactions with Walter, the defendant and the entire world who intended to engage in trust receipt transactions with Walter had constructive notice by Ms filing. Also, when the defendant filed his statement of intention to engage in trust receipt transactions with Walter, three months later on, to-wit, August 16, 1939, the entire world, except the plaintiff, had constructive notice of his filing. However, under the authorities cited above, the defendant’s subsequent filing on August 16, 1939, does not constitute and could not constitute notice to the plaintiff. Actual notice to the. plaintiff by the defendant would be required.

Our attention is called to the fact that this act is intended to apply to a continuous course of dealings between an entruster and trustee, and that it is clear that the defendant’s construction would make it impossible to have a continuous course of dealings and, therefore, the language of the act, as well as its purpose, would be perverted, undermined and destroyed; that tMs is so because, while the purpose of the act is to give the entruster every conceivable protection, under the defendant’s construction no matter what an entruster does he can never be certain that his security interest is paramount and incapable of being relegated to an inferior position by either the fraudulent connivance of a dishonest trustee and entruster, or by a dishonest trustee and honest, but subsequent, entruster.

The question to be considered is whether the plaintiff’s rights in the automobiles of Walter are fixed as of the date of his filing with the Secretary of State and not as of the date he actually advanced money. It is important in this connection to discuss the pertinent provisions of the statute. Section 172 provides:

“(1) (a) If the entruster within the period of thirty days specified in subsection 1 of section 8 files as in this act provided, such filing shall be effective to preserve his security interest in . . . goods against all persons. . . .

(b) Filing after the lapse of said period shall be valid; but in such event . . . the entruster’s security interest shall he deemed to be created by the trustee as of the time of such filing, without relation hack, as against all persons not having notice of such interest.”

And section 173 provides as follows:

(1) The entruster’s security interest in goods . . . under the written terms of a trust receipt transaction’ shall, without any filing, be valid as against all creditors of the trustee, with or without notice, for 30 days after delivery of the goods ... to the trustee and thereafter except as in this act otherwise provided. But where the trustee at the time of the trust receipt transaction has and retains goods . . . the 30 days shall be reckoned, in the case of goods . . . from the time the qntruster gives new value under the transaction and in the case of instruments from the time such instruments are actually shown to the entruster or from the time that the entruster gives new value, whichever is prior.”

The defendant, however, avers that plaintiff’s filing with the Secretary of State under section 13 of the Illinois Trust Receipts Act did not constitute notice to the defendant of trust receipt transactions which had not been entered into, and points to the proposition that the plaintiff has stated, namely, that he obtained a security interest in automobiles upon which he had advanced no moneys.

Defendant avers that there was notice to the plaintiff of the defendant’s security interest prior to the time plaintiff entered into its trust receipt transactions and made its advances; that constructive notice means only that the person charged with notice is treated as having knowledge of all the facts which a reasonable inquiry would have disclosed, citing Moore v. Machinery Sales Co., 297 Ill. 564, and German-American Nat. Bank v. Martin, 277 Ill. 629. Defendant avers that filing is the constructive notice of the interest of an entruster, that is, one who has taken a trust receipt for an advance, and that defendant was an entruster as to every automobile in issue before plaintiff was, quoting section 1 of the act, as follows:

“ ‘Entruster’ means the person who has, or directly or by agent takes a security interest in goods, documents or instruments under a trust receipt transaction, and any successor in interest of such person.”

Defendant then urges that until a person actually takes a security interest under an actual trust receipt transaction, not a mere filing of statement of intention, he is not an entruster, that he may intend to become an entruster but he is not yet an entruster.

In a case such as this, involving priority between two entrusters, it is imperative that sequence of events must be stated in chronological order so that the contested rights of the litigants may be adequately "and fairly considered. Defendant in purporting to state from the stipulation of facts states, “At the time of the filing with the Secretary of State there was no commitment by the plaintiff to extend credit to Walter or to make advances to him. Plaintiff subsequently did make advances to Walter and obtained trust receipts from him, but in each instance at a time later than the defendant’s advances and trust receipts.” The plaintiff, however, suggests that this is a definite misstatement and if unchallenged would confuse the issues involved. The record and stipulation of facts do not contain a single statement to the effect that at the time of plaintiff’s filing with the Secretary of State there was no commitment by him to extend credit or to make advances to Walter, and, on the contrary,- the stipulation of facts quoted above states that after the plaintiff’s filing on May 25, 1939, he advanced money from time to time to Walter and took trust receipts on automobiles as security therefor; that such a course of dealings between plaintiff and Walter existed before the defendant filed with the Secretary of State and after the defendant filed; that, furthermore, defendant’s advances to Walter were not always made prior to plaintiff’s advances to Walter as defendant states; that defendant’s advances on the automobiles in controversy were the only advances made prior to the plaintiff’s and that is why we have this litigation.

In order definitely to eliminate the possibility of confusion in the sequence of events as they occurred, they are stated chronologically as follows:

May 25,1939 — Plaintiff files declaration with Secretary of his intention to engage in trust receipt transactions with Walter;

May 25, 1939 to August 16, 1939 — Plaintiff and Walter engage in trust receipt transactions from time to time;

August 16, 1939 — Defendant files declaration with Secretary of State of its intention to engage in trust receipt transactions with Walter;

August 16, 1939 to December 21, 1939 — Both plaintiff and defendant engage in trust receipt transactions with Walter, each having no actual notice of the other’s filing.

January 30, 1940 — Defendant repossessed the automobiles and forfeited Walter’s interest therein;

February 7, 1940 — Defendant sold the automobiles at a public sale for $2,300.

So we' have the dates and facts as they chronologically appear in this record.

Plaintiff, in reply to the suggestion offered by the defendant, does not contend that he obtained a security interest in Walter’s automobiles by merely filing his statement of intention to engage in trust receipt transactions with Walter. On the contrary, plaintiff contends that his filing was notice to all the subsequent entrusters of his ‘ ‘. . . undertaking or contemplating trust receipt transactions . . .” with Walter (section 178(1) of the act) and of his contemplated rights to be created thereunder. Stated differently, plaintiff contends that his filing under the act gave him an inchoate security interest or inchoate lien in Walter’s automobiles, which interest or lien became perfected or consummate whenever he advanced money or credit to Walter and took trust receipts on specific automobiles as security therefor.

Defendant replies and contends that there can be no constructive notice of a security interest which is not in esse because not being existent there cohld be no actual notice of it.

The plaintiff, however, calls to our attention as an illustration the supposed situation of an owner of a building lot who entered into a written contract with a builder to make extensive repairs in the 'building, and says: Let us assume that the builder started the repairs 90 days later and has not been paid upon completion. Thereafter the owner conveys to X and'then the builder asserts his mechanic’s lien. The courts have unanimously held that for four months after completion a mechanic has an inchoate mechanic’s lien which becomes choate and consummate upon the mechanic’s complying with the statute. Upon such compliance, the lien attaches not as of the date of completion or commencement of the work, but as of the date of the contract. And all rights created after the date of the contract are subordinate and inferior to the mechanic’s lien. (Boyer v. Keller, 258 Ill. 106, 115.) Thus once the mechanic complies with the statute, his lien relates back to the date of the contract.

It is further urged that if a mechanic acquires an inchoate mechanic’s lien .on realty merely by entering into a contract to make repairs, which lien, when it becomes consummate, relates back to the date of the contract, why cannot an entruster who properly files under the Trust Receipts Act acquire an inchoate security interest in his trustee’s prescribed property, which inchoate rigid ripens into a security interest when money or credit is advanced on the basis of trust receipts on specific property? We quite agree with the suggestion offered by the plaintiff that the rule applies where the provisions of the statute are-complied with. The lien given by the act attaches as of the date of the application, and, therefore, whoever purchases the property after the contract is made purchases subject to the lien under that contract and is bound by it. That of course has application to this instant case, and we are satisfied that the rule as suggested applies to an entruster who properly files under the Uniform Trust Receipts Act, thereby acquiring an inchoate security interest in the prescribed property, which inchoate interest ripens into a security interest when money or credit is advanced on the basis of the trust receipt on specific property.

The defendant argues that its public sale of all the automobiles in question did not constitute a conversion of plaintiff’s security interest therein. If the defendant sold the automobiles subject to plaintiff’s prior interest, then plaintiff would not be prejudiced and there would be no conversion. This, however, is not the fact in the instant case. It appears from the defendant’s further argument that defendant’s position is that plaintiff should be estopped to assert his title, and that defendant’s taking of the automobiles under its claim of right was not a conversion of plaintiff’s interest therein because no sale had as yet taken place. This is not a correct statement of the law, as is suggested by the plaintiff. In the case of Union Stock Yards & Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill. 554, the court enunciated the correct rule of law as follows:

“A conversion is any unauthorized act which deprives a man of his property permanently or for an indefinite time, and, when such a conversion has taken place, a demand is not necessary. A wrongful assumption of the ownership otf property may be it conversion in itself, and render a demand and refusal unnecessary.”

It is urged that the taking of' the automobiles by the defendant under its trust receipts was inconsistent with the plaintiff’s prior claim thereon, and operated to deprive the plaintiff of his security interest therein and constituted a conversion per se, without any sale. In Genuine Panama Hat Works, Inc. v. Paragon Hat Co., 245 Ill. App. 531, the rule, is stated to be:

“To constitute a conversion of chattels there must be an unauthorized assumption of the right to the possession or ownership thereof.”

So far as the question is. concerned that affects the plaintiff, the defendant exercised an unauthorized assumption of the right to the possession of the automobiles, adverse to plaintiff’s rights, for otherwise the defendant would have given them to the plaintiff voluntarily and no sale would have taken place.

The stipulation of facts states clearly that the defendant insisted that its rights were prior to the rights of the plaintiff in the automobiles in controversy by virtue of the priority in time of defendant’s trust receipts, which claims the plaintiff denied. The defendant thereupon sold the automobiles at public sale. The cases that defendant cited, as suggested by the plaintiff are not in point, nor do they sustain its contention. For example, defendant cites the case of Consolidated Hair Goods Co. v. Adams Clark Bldg. Corp., 289 Ill. App. 576, as authority for the proposition that a chattel mortgagee who notifies an attaching creditor and levying bailiff, who are levying on the mortgagor’s interest in the chattels, of his mortgage, but does not object to the bailiff’s sale, cannot sue the creditor or bailiff in conversion. That is a correct statement of the law but it has no application here upon the questions involved in the instant case. The court in that case said: ‘ ‘ The bailiff of the municipal court levied upon and sold the right, title and interest of DeCaprio, the mortgagor, in the property.” Since the bailiff’s sale did not affect the mortgagee’s interest in the chattels, there is no conversion, he has no • cause for complaint, and, therefore, there cannot possibly be an estoppel.

When the defendant asserted that its lien was prior to that of the plaintiff and when it took, possession of the automobiles by virtue of its rights under its trust receipts and offered them for sale publicly to satisfy its claim, that was a conversion of plaintiff’s property interest. The automobiles were not sold subject to the plaintiff’s prior claim nor were they sold to satisfy plaintiff’s claim. They were sold by the defendant to satisfy the defendant’s claim, and the sale brought $2,300. If the plaintiff’s claim to the automobiles were prior to that of the defendant, and his claim is prior, how can anybody argue that defendant should be allowed to keep the money?

Since the automobiles were sold at a public sale they presumably brought their then value and not only was the defendant not prejudiced by plaintiff’s action but it has been benefited. That is so because it has incurred no expense in storing or insuring the automobiles for the past three years and it sold them for a good price.

So that when we come to discuss all the facts and apply the stipulation of facts, "a part of which recites that neither Russell Walter nor anybody on his behalf has paid the plaintiff the $2,240 which he advanced, and since the defendants took possession of the automobiles and caused sale thereof and defendant’s simultaneous denial of plaintiff’s prior interest therein prevented plaintiff from being paid, and since plaintiff’s interest is prior to the defendant’s, the defendant must pay the plaintiff the proceeds of the sale wrongfully held. (Mattoon Grocery Co. v. Stuckemeyer, 326 Ill. 602.)

Wherefore the judgment herein is reversed and the cause remanded to the trial court with directions to enter a judgment against the defendant in the sum of $2,240 with interest thereon at the rate of 5 per cent per annum.

Reversed and remanded with directions.

Burke, P. J., and Kiley, J., concur.