author: Mr. Presiding Justice Windes

text:
    Rittenhouse & Embree Co., James H. Stevens, Edwin J. Sherbrook, C. L. Webster & Son et al., v. William H. Barry et al.
    1. Chancery Practice — Objections to the Master's Report Must be Specific. — Unless an objection to the master’s report is made specific and points out the particular grounds of objection with clearness and certainty, so as to call attention to the particular point, it is insufficient and will be. disregarded.
    3. Mechanic’s Liens — Under Verbal Contracts. — When work is done or materials are furnished under a verbal contract, a lien can be had under the mechanic’s lien law when the contract provides that the work shall be done and the materials shall be furnished within one year from the making of the contract, and final payment therefor is to be made within the same time.
    3. Same— What is an Oral Contract. — A contract partly in writing and partly oral, is in legal effect an oral contract.
    4. Same — Construction of Contracts for. — It is not necessary in the construction of a contract in order to maintain a mechanic’s lien under it, that a specific day or date should be fixed for the completion of the work or final payment made, but only that it appear that the time for the completion of the work is not beyond three years from the date of the contract, and that of final payment not beyond one year from the time stipulated for the completion of the work.
    5. Contracts — To be Construed, in the Light of Surrounding Circumstances. — In the construction of contracts, courts will endeavor to determine what was the real intention of the parties, and the contract will be construed in the light of the circumstances surrounding the parties at the time it was made and of the purposes they had in view, and for the purpose of determining what was such intention, the acts of the parties themselves will also be considered.
    Bill for a Mechanic’s Lien. — Appeal from the Circuit Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in this court at the March term, 1601.
    Reversed and remanded with directions.
    Opinion filed December 12, 1901.
    Statement by the Court. — One of the appellants, Rittenhouse & Embree Co., a corporation, filed its bill in the Circuit Court, whereby it sought a mechanic’s lien on six flat buildings and the real estate on which they wTere situated, for certain lumber furnished to Stevens & Sherbrook, original contractors for doing the carpenter and mill work on said buildings, under a verbal c ntract made about May 9, 1896, set out in the bill. The bill alleges, among other things, that William H. Barry and James E. Fellows were the owners in fee of the premises at the time the contracts for the erection of the buildings and furnishing the lumber were made by Stevens & Sherbrook and the Rittenhouse & Embree Co.; that the record title was in said Barry until May 14, 1896, when it was conveyed to Ebenezer Bvder.
    On May 6, 1896, Barry & Fellows entered into a written contract with C. L. Webster & Son to furnish the material therefor and do the mason work on said buildings for $4,800, who, after doing the work and furnishing the material under their contract, sold and assigned to Frank B. Pease, as trustee for the use and benefit of the Labahn Brick Co. and others, all the right, title and interest of Webster & Son in and to their claim under their said contract, and to a mechanic’s lien. Webster & Son, said Pease, and the beneficiaries under said assignment of the claim and lien of Webster & Son, filed their cross-bill, seeking a lien for a balance due under the contract of Webster & Son of $3,584 and interest, and making numerous parties defendants thereto, including the said Barry, Fellows, Bvder, Rittenhouse & Embree Co., Stevens, Sherbrook, and Baylev, as trustee under six certain trust deeds on said real estate, dated May 11, 1896, made by said Barry to secure certain notes for a building loan of $24,000 on said premises, made for the purpose of erecting the said buildings.
    Answers were filed to both the original and cross-bill by all the defendants thereto, respectively, who have any interest in this appeal, as well as others, to which answers, respectively, replications were filed. Among other answers to. the original bill was one by Stevens & Sherbrook, in which, among other things, after stating the title to said real estate, they set up a verbal contract between them and said Barry & Fellows for furnishing materials and doing the-carpenter work on said buildings for the sum of $6,000, and asked that they be allowed a lien on said buildings and real estate for a balance of $4,000 which they claimed to be due them thereon.
    • Subsequently the owners of the notes secured by said trust deeds to Bayley were made parties to the bill and cross-bill, answered the same, claiming that their liens on said premises by virtue of said notes and trust deeds were prior and superior to the liens claimed by the complainant, cross-complainant, or any of the defendants to said bill or cross-bill.
    After the issues were made, the cause was referred to a master to take proof and report the same with his conclusions thereon. While the cause was pending before the master his term of office expired, when an additional order of reference was made, referring the cause to said master as special commissioner, with like directions. The commissioner, having completed the evidence, reported the same, together with his conclusions, which was filed on the 27th day of January, 1900, finding in favor of mechanic’s liens for each of the appellants and several other persons, whose claims are not necessary to be considered on this appeal. The substance of the commissioner’s report, so far as necessary to be stated, appears in the opinion.
    Objections were made before the master by the defendants, the owners of the notes and trust deeds, and Bayley, the trustee, as follows :
    “ First. That the master has found that Barry & Fellows contracted verbally with Stevens & Sherbrook for the carpenter and mill work on May 6, 1896, and that the date of completion and final payment were not definitely fixed; whereas the contract shows that the contract was partly verbal and partly written, and that completion and final payment were fixed bv terms of the contract at September 1, 1896. '
    ' “ Second. That Stevens & Sherbrook were delayed prior to September 1, 1896, by other contractors.
    “Third. That said work and material was furnished from time to time up to October 13, 1896, which was the date of the last delivery and performance of last work, whereas said work was substantially completed on or about September 3, 1890.
    “ Fourth. Objects to finding that Stevens' & Sherbrook filed lien statements substantially in compliance with statute, which said finding is contrary to the evidence, as shown by the statement of claim for lien and indorsements thereon, returned with the report.
    “ Fifth. Objects to finding that Stevens & Sherbrook are entitled to a lien for $4,000, and also that there is a variance between the proofs and answer of said Stevens & Sherbrook in that said answer sets forth a verbal contract, when the evidence shows that said contract was partly verbal and partly written, and that said answer states that no time was agreed for completion, whereas proofs show the contract was completed by September 1, 1896; also that said statement for claim for lien was not filed within the time prescribed by statute.
    “ Sixth. Objects to the finding that Rittenhouse & Embree Company is entitled to lien for $1,900.97, with interest, which said finding is contrary to the law and the evidence: First, because there is no proof that the date of the last delivery of material by said Rittenhouse & Embree Co. was August 8, 1896, as found by the master; second, there is no evidence that notice of claim for lien was served by Rittenhouse & Embree Co. on Barry & Fellows within sixty days after the last material was furnished; third, because there is a variance between the bill and the proofs, in that the bill alleges that the contract between Stevens & Sherbrook and Barry & Fellows was not written, whereas it appears said contract was partly verbal and partly in writing; also that the bill alleges no time was fixed by the contract for the completion of the work, whereas it appears from the evidence that said'work was to be completed by September 1, 1896.
    “ Seventh. That said Rittenhouse & Embree Co. are entitled to a lien prior to that of said Bayley, whereas said lien, if any, took effect from October 7, 1896.
    “ Eighth. That the master has found that Frank B. Pease, trustee, is entitled to a lien for the sum of $3,284, which finding is contrary to the law and evidence for the reason that the statement for lien is filed by said Webster & Son, assignor of said Pease, and is not in accordance with the statute.”

      Ninth to fifteenth, eighteenth and twentieth objections inclusive relate to claims not in question on this appeal.
    “ Sixteenth. That the-master has found that the trust deeds to said Bayley are prior liens on and after May 14, 1896, to the alleged mechanic’s liens.

      “ Seventeenth. That the master has found that the liens of Bittenhouse & Embree Company, Frank B. Pease, trustee, and Stevens & Sherbrook, are paramount to the liens of said trust deeds.
    “ Nineteenth. That the master found that if any one or more of said lots and houses does not sell for sufficient to satisfy the liens and costs, the deficiency should be paid out of the surplus proceeds of the sale of any of the other houses and lots.
    “ Twenty-one. The mechanic’s lien statute is unconstitutional and void, so far as it affects these objectors.”
    The objections before the master were ordered to stand as exceptions, on a hearing of which before the chancellor the.same were sustained, and the court found that said Bittenhouse & Embree Co., the cross-complainants in the cross-bill, and the defendants, Stevens & Sherbrook, and others who have not appealed, were not, nor were any or either of them, entitled to a mechanic’s lien on said premises or any part thereof, and the same were disallowed and said premises decreed to be free and clear of and from each and all said claims for liens, and that the original and cross-bills be and the same were thereby dismissed for want of equity. The court also, by the decree, fixed the fees of the master and special commissioner at $500, and apportioned the same between the different lien claimants, to be paid by them respectively as follows: Bittenhouse &
    Embree Co., $90.45; Stevens & Sherbrook, $95.40; Webster & Son, $151.10, and to other claimants different amounts not now questioned.
    From this decree Bittenhouse & Embree Co., Stevens & Sherbrook and the complainants in the cross-bill have prosecuted this appeal.
    Morphy & Allee, Atwood & Pease and Jesse Cox, attorneys for appellants.

      Bayley & Webster, solicitors for said appellees.
   Mr. Presiding Justice Windes

delivered the opinion of the court.

First, as to the claim of Stevens & Sherbrook, the original contractors for furnishing the material therefor, and doing the carpenter work. It appears from the findings of the commissioner, among other things, in substance, that a verbal contract dated May 6,1896, between Stevens & Sherbrook and Barry & Fellows was made on that day, for furnishing the material and doing the carpenter and mill work for the erection of six buildings on premises owned by Barry & Fellows, the title to which was in Barry; that by the terms of said contract the dates for its completion and for final payment were not absolutely fixed, but the work was to be done and the material therefor was to be furnished in a reasonable time, to wit, within one year from the date of the contract, and the payments therefor were to be made as the work progressed, and the final payment was to be made at the date of the completion of the contract; that said contract was practically completed on the 3d day of September, 1896, when, bv reason of the failure of Barry & Fellows to pay as the work progressed, the work was suspended to the following October 11th, when it was resumed and completed October 13, 1896, which'was the date of the last delivery of materials and the date of the last work done; that Stevens & Sherbrook completed said contract according to its intent, though they were delayed by other contractors prior to September 1, 1896, and on January 22, 1897, filed with the clerk of the Circuit Court a claim for a lien, which was substantially in conformity with the statute in that regard; that the said buildings were under one roof, attached, and had a continuous front wall, and that Stevens & Sherbrook were entitled to a lien for the balance due them under their said contract,, which was found to be §4,000, and interest from October 13, 1896, together with solicitor’s fees of §5 for filing their claim for lien, and ten per cent of the amount found due as provided bjr the statute, amounting in all, after deducting therefrom the amount of the claim of Pittenhouse & Embree Co., to the sum of $2,650.60.

A careful examination of the evidence shows that a contract was made, as found by the commissioner, though it was partly verbal and partly written, and it was ■ objected before the master and excepted to before the chancellor, that the master found that the contract was verbal. There is no merit in the objection. When a contract is partly verbal and partly in writing, it is as a whole in law an oral or verbal contract. Murphy v. Cicero Lumber Co., 97 Ill. App. 510, and R. P., etc., Ass’n v. Loomis, 142 Ill. 560.

In the last case the court say:

“A contract partly in writing and partly oral is in legal effect an oral contract.”

In this case the evidence shows the contract to have been largely oral, very few of its terms being in writing.

The findings of the commissioner that Stevens & Sherbrook were delayed prior to September 1, 1896, by other contractors, that the last work was done and the last material furnished on October 13, 1896, though the work was substantially completed by September 3, 1896, are all sustained by the evidence, and the objections to the master’s report in these respects were, in our opinion, wrongfully sustained by the chancellor. The same is true as to each and all of the objections and exceptions as to findings of fact by the master as to this claim for lien, except the finding that Stevens & Sherbrook filed with the clerk of the Circuit Court their claim for lien substantially in conformity with the statute. As to this finding, this court, as wel 1 as the chancellor, is precluded from examining the sufficiency of the 'evidence to sustain the report, because the objection before the commissioner and the exception before the chancellor to the report in that regard, is not sufficiently specific. The objection on this point before the commissioner (which was made an exception before the chancellor) does not point out in Avhat respect, if any, the lien statement failed to comply Avith the statute. Unless an objection is made'specific — points out the particular ground of objection with clearness and certainty, so as to call attention to the particular point, it is insufficient and will be disregarded. Bishop v. Blair, 90 Ill. App. 64-81; Thornton v. Commonwealth L. & B. Ass’n, 181 Ill. 456, and cases cited.

An extended argument is made by the learned counsel for appellees as to the sufficiency, under the statute, of the statement of claim for lien and as to the time within which it was filed; but so far as it relates to the sufficiency of the statement, it is answered by the insufficiency of the objection and exception to the commissioner’s report to raise these questions. So far as concerns the filing of the claim for lien, the evidence shows that it was filed within the time prescribed by the statute, viz., within four months after the last payment was to become due and payable.

It is also argued that because the contract was a verbal one, and the work was to be completed withiñ a reasonable time, to wit, within one year from May 6, 1896, under the authority of Freeman v. Rinaker, 185 Ill. 179, and Kelley v. Northern Trust Co., 190 Ill. 401, there could be no lien. We think the contention is untenable. In both these cases the court had under consideration a written contract, in which there was no provision as to the time within which the work was to be performed or the money paid — not a verbal one, as is the case here, in which these times are .fixed. Section 6 of the lien statute, in so far as it relates to liens under verbal contracts, is as follows:

“If the work is done or materials are furnished under a verbal contract, no lien shall be had by virtue of this act unless the work shall be done or materials furnished within one year from the date of the contract, and final payment therefor is to be made within such time.”

It is apparent from this language that it is sufficient to give a lien under a verbal contract that -it shall provide that the work shall be done or materials shall be furnished within one year from the date of the contract, and that final payment is therein provided to be made within the same time. Indeed, if the statute be read omitting the last clause, it might be well contended that a lien would be given under a verbal contract, if the work should, as matter of fact, be done or materials be furnished under it within one year from the date of the contract, although it contained no provision in that respect. When, however, the last clause of this paragraph of the statute is read in connection with the remainder of the paragraph, we think the fair intendment is that the contract by its terms should provide, in order that a lien may be had under it, that the work should be done or materials be furnished within one year from its date, and the final payment provided to be made within the same time. The claim of appellees’ counsel that the evidence does not support the finding of the commissioner that the work was to be done and the materials furnished within one year from the date of the contract, and that the final payment was to be made within the same time, is untenable. The evidence shows, as we think, that the commissioner was justified in the finding.

Appellees, in their objection and exceptions, assert that the evidence shows the completion of the work and final payment were fixed by the contract at September 1, 1896, and that the work was substantially completed on or about September 3, 1896. They will not now be permitted to take a different position. There is no conflict in the evidence but that the work was substantially completed on September 3, 1896, and that it was fully completed and all the materials furnished by the following October 13th, and that the delay in completely performing the contract was caused by other contractors — that it was not the fault of Stevens & Sherbrook.

It is also claimed that there was a variance between the proofs and the answer of Stevens & Sherbrook, in that the answer sets forth a verbal contract, while the evidence shows that it was partly verbal and partly written. What we have above said as to the nature of the contract sufficiently disposes of this contention. The claim that there was a variance between the answer of Stevens & Sherbrook and the evidence as to the time agreed for the completion of the work, is not well founded. The answer and the proof in this regard substantially agree.

As to this claim, we are of opinion, upon the whole evidence, that the exceptions to the commissioner’s report should have been overruled and the report confirmed.

Claim of Rittenhouse & Embree Co.

As to this claim the commissioner finds, among other things not here material to be stated, that the company entered into a verbal contract with Stevens & Sherbrook on May 9, 1896, to furnish the lumber needed for the erection of the six buildings which the firm had undertaken to build for Barry & Fellows; that the lumber was to be delivered within a reasonable time, to wit, within one year from the date of the contract, and was to be paid for as the building progressed, the final payment to be made at the date of the last delivery; that the contract was fully performed by the company; the material was used in the buildings; that the date of the first delivery was May 9th, and the date of the last delivery was August 8, 1896; that the prices were the reasonable cash market prices at the time of delivery, and there was due to the company $1,900.97 therefor; that the account was approved by both Barry & Fellows and Stevens & Sherbrook; that a lien notice was filed in the office of the clerk of the Circuit Court, according to the statute; and that there was due to the company the said amount of its claim, with interest from August 8, 1896; also that out of the amount found due to Stevens & Sherbrook; there should be deducted the said amount due to the company, with interest; that the company was entitled to ten per cent of its claim for solicitor’s fees, which should be deducted from the solicitor’s fees of Stevens & Sherbrook:- that the amount due Rittenhouse & Embree Có., including interest and their solicitor’s fees, was $2,430.89.

Substantially the same objections are made and urged against this claim that were made against the claim of Stevens & Sherbrook as to variance between the pleadings and proof, the nature of the contract, and as to its provisions with reference to its completion and the time of payment. The facts with reference thereto, as shown from the evidence, do not differ materially in their probative effect from the facts relating to the Stevens & Sherbrook claim. What we have said in that regard as to the latter claim applies equally here.

It is also contended, and the point was specifically made in the objections before the master and the exceptions before the court, that there is no evidence to sustain the report of the commissioner that the date of the delivery of the last material under this contract was August 8, 1896, and that there is no evidence that the notice of claim for lien was served by the company on Barry & Fellows within sixty days after the last material was furnished. The contention can not be maintained. The evidence shows that the notice of lien was served on October 6, 1896, which would be fifty-nine days from August 8, 1896, which latter date is the one which the commissioner finds was the date of the last delivery. We have carefully read the evidence, consisting of the testimony of the witness Sherbrook, an itemized statement of the account and the load tickets of the lumber, and think that it fully supports the finding of the master. This statement of account is certified to be correct by Barry & Fellows, the owners, and by Stevens & Sherbrook, the original contractors, who received the material.

We are therefore of opinion that the objections and exceptions to the commissioner’s report should have been overruled and this claim allowed as a lien, in accordance with the report.

Claim of C. L. Webster et al.

The commissioner, as to this claim, finds that on May 6, 1886, Barry & Fellows, as owners, made a contract in writing with Webster & Son to furnish the material and do the mason work on said buildings for $-1,800, payments ■ to be made, eighty-five per cent in installments as the work progressed, and the final payment thirty days after the completion of the work. The contract also contains the following provision, to wit:

The contractor shall complete the several portions and the whole of the work embodied in this agreement by and at the time or times hereinafter stated, to wit: to have the brick walls ready for the roof joists in thirty (30) days from date hereof and "the balance of the work as soon as practicable thereafter.”

The commissioner’s report further finds, in substance, that the work was begun under said contract on May 7th, and completed July 22, 1896, and that the materials were furnished in substantial compliance with the contract and within the time mentioned therein; that they also, at the request of Barry & Fellows, furnished extra materials to the value of $8; that after deducting payments, the items of which are given, aggregating $1,524, there was a balance due of $3,284, for which amount, with interest from August 22, 1896, Webster & Son were entitled to a lien as well as for ten per cent of the amount for solicitor’s fees and $5 for filing lien claim, which is found to have been filed October 12,1896, and to be substantially in conformity to the statute; that on October 12, 1896, Webster & Son assigned all their interest in said claim for lien and contract to Frank E. Pease, trustee for certain persons named in the assignment, to whom there was due in all, including interest and solicitor’s fees, the sum of $4,198.39.

It is argued for appellees that no time is fixed by the contract of Webster & Son for the completion of the work and final payment within three years from the date thereof, and therefore, under section 6 of the lien act and the construction given thereto by the Freeman and Kelly cases, supra,, no lien can arise by virtue of the contract. We think the contention can not be sustained. As we have seen in both said Freeman and Kelly cases, no time was fixed by the contracts for the completion of the work nor furnishing the materials, nor for payment. They differ essentially from the contract here, -which provides that the work should be completed as follows :

“ To have the brick walls -ready for the roof joists in thirty days from date hereof and the balance of the work as soon as practicable thereafter.”

The question presented by this contract is whether it fixes a time for the completion of the work. If it does, then the provision as to the time of payment, viz., that the final payment shall be made thirty days after the completion of the work, is definitely fixed.

It is well settled that in the construction of contracts, the court will endeavor to determine what was the real intention of the parties; that the contract will be construed in the light of the circumstances surrounding the parties at the time it was made, and of the purposes they had in view; and for the purpose of determining what was such intention, the acts of the parties themselves will also be considered. 1 Addison on Contracts, * p. 182 (293); 1 Chi tty on Contracts (11th Am. Ed.), 103, note; 2 Parsons on Contracts (6th Ed.), 498; 1 Beach Mod. Law of Contracts, Secs. 708, 719 to 722; Street v. Chicago W. Co., 157 Ill. 605-14, and cases cited; Work v. Welsh, 160 Ill. 468-73; Curtis v. Hawley, 85 Ill. App. 429-35; Dowiat v. People, 92 Ill. App. 433-9.

In the Street case,.suj>ra, the court say:

“ The court will, if necessary, put itself in the place of the parties and read the contract in the light of the circumstances surrounding them at the time it was made, and of the objects which they then' evidently had in view. So, also, the acts of the parties themselves, indicative of the construction placed upon it, may be resorted to for the purpose of determining the true meaning of the written agreement. And in this regard it makes no difference whether such acts are contemporaneous or subsequent.”

It is not necessary, in the.construction of this contract, in order to maintain a lien under it, that a specific day or date should be" fixed when the work was to be completed or final payment made, but only that it should appear that the time for the completion of the work should not be beyond three years from the date of the contract, and the time of final payment not beyond one year from the time stipulated for the completion of the work. Claycomb v. Cecil, 27 Ill. 497; Reed v. Boyd, 84 Ill. 66.

In both these cases the court had under consideration the lien act of 1845, which has, in the respects here under consideration, substantially the same language as the present mechanic’s lien act. In the Freeman and Kelly cases, supra, it was held that the latter act should receive the same construction as the former. In the Clay comb case the court held that a contract was sufficient which provided that the work should be completed before cold weather in the fall of the year it was made. In the Reed case a petition for a lien, which alleged that payments were to be made in installments of ten per cent as the work progressed, and fully made when the work was completed, and that the work was to be completed in three years, without fixing a particular day for completion, was held to be sufficient, and the court say:

The statute does not require that the particular day shall be named in the agreement to render it valid as a lien. The statute expressly provides that the time for completing the work shall not be extended for a longer period than three years, nor the time for the payment beyond the period of one year from the time stipulated for the completion thereof. * * * There was a time fixed for the payment, not a specified date, but a time within the limited period of the statute.”

When the foregoing principles of construction are applied to this contract, in the light of the evidence, we are of opinion that the time for the completion of the work and the final payment is sufficiently definite to authorize a mechanic’s lien, under the contract, and in view of the provisions of the statute.

The evidence shows that on the same day that the Webster contract was made, another contract was entered into between Barry & Fellows and one Ryder, from whom they purchased the real estate on which the houses were to be built, which, among other things, provided that Barry & Fellows should complete the six houses in question on or before October 1, 1896; also on the same da\r Barry & Fellows wrote to Stevens & Sherbrook, the carpenter contractors, as follows:

“The Yincennes Ave. contract was signed to-day. Will start excavating to-morrow a. m. Webster has the mason contract. This is to be a rush job. Six houses by September 1st.”

As a matter of necessity, the mason work, which was to be done by Webster & Son, would have to be finished before the carpenter work. The mason work was done, as a matter of fact, by July 22, 1896, two months and sixteen days after the contract was made. It is also shown that to have the brick walls ready for the roof joists, which it i$ provided by the contract should be within thirty days from its date, was at least ninety per cent, if not ninety-five per cent, of the whole mason contract.

We are therefore of opinion that the further provision of the contract that the balance of the work should be completed as soon as practicable after the brick walls were ready for the roof joists, when construed in the light of the foregoing facts and circumstances, it is clear beyond question that it was the intention of the parties that the mason work should be done before September • 1, 1896. This construction would bring the contract within the purview of the . statute and justify a lien thereunder.

We are therefore of opinion that the exceptions to the commissioner’s report should not have been sustained, and that a lien should have been allowed in favor of Webster & Son and their assignees, as found and recommended by the commissioner.

Claims of Edwin P. Bayley, Trustee, and Owners of Notes Secured by Trust Deeds to Him.

As bearing on these claims, the commissioner found, among other things not necessary to be here stated, that said Ryder agreed to sell the premises in question for $12,000 to Barry & Fellows, who in turn agreed to secure a loan thereon of $2J,00U, to be used in the erection of the buildings in question, said Barry to take the title and execute a mortgage to secure such loan, and then, as security, to reconvey to Ryder, subject to the incumbrances for the loan; that they would erect said buildings by October 1, 1896, and pay Ryder for the land $6,000 on or before November 1, 1896, and $6,000 on or before November 1, 1897; that Barry made six separate trust deeds to Bavley, dated May 11, 1896, which were recorded May 14, 1896, each securing $4,000 and interest; that the defendant Nome Williams was the owner of the notes secured by three of the said trust deeds; that the defendants Mitchell and Haskell, as trustees, were the owners of the notes secured by another of said trust deeds; that the defendant Harriet F. Dart was the owner of the fifth trust deed and notes secured thereby, and that Sarah H. Haskell was the owner of the remaining trust deed and notes; that Barry & Fellows erected said buildings with the knowledge and permission of Byder, and are still the owners of said real estate, subject to a conveyance to Byder, which was absolute on its face, though a mortgage; that the money secured by said several trust deeds was paid out to Barry & Fellows between May 25th and August 18, 1896, and that said Bayley, under the terms of said trust deeds, is entitled to $1,200 as his attorney’s fees, which is found to be the reasonable, usual and customary fee for the services of his solicitor in this cause, which is a lien on said premises; that on May 6,1896, each lot of said premises was worth $2,000, and that the market value of said lots was enhanced by the said buildings the sum of $24,000 or $4,000 each; that each of said lots is subject to a lien of a separate one of said deeds of trust to Bayley of $4,000, but that the liens of the trust deeds were subject to the mechanic’s liens of Bittenhouse & Embree Co., Stevens & Sherbrook, and Pease, trustee under the assignment from Webster & Son.

From an examination of the evidence, we are of the oninion that the findings of the commissioner are sustained as to these claims, and that his conclusions as to their liens are correct.

The chancellor, by the decree, fixed the commissioner’s fees at $500, and apportioned the same between the several lien claimants in amounts as shown by the statement. We think, from an examination of the evidence, the commissioner’s report and objection thereto, that the decree of the court as to the amount of the commissioner’s fees, is supported by the evidence. We see no objection to the apportionment made by the chancellor as between the different lien claimants, but the costs apportioned to each of the appellants here should be borne by and taxed against the defendants Barry & Fellows, and should be paid first out of the proceeds of any sale of the premises in question.

. The decree will, therefore, as against the appellants Bittenhouse & Embree Co., Stevens & Sherbrook, and the complainants in the cross-bill, be reversed, and the cause remanded, and the Circuit Court is directed to enter a decree for mechanic’s liens in favor of said appellants, respectively, for the several amounts due to them, as found by the commissioner’s report, and interest thereon from the date of such report, together with their, costs in the Circuit Court, as apportioned by the chancellor, and their costs in this court. The decree will apportion the liens, as recommended by said report, though it shall not provide that any deficiency remaining from a sale of either of said lots or houses should be paid out of the surplus proceeds of the sale of any of the other houses and lots, but only that in case of any such deficiency or surplus the same should be reported to the court for its further order in that behalf. Beversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Adams

license: Public Domain

text:
    William H. Fleet v. Henry L. Hertz, for use, etc.
    1. Profert — When it, or an Excuse for it, is Necessary — Practice.— At common law, where a profert, or excuse for the want of it, is necessary, if the plaintiff professes to produce the instrument when he is not prepared to do so, the defendant is entitled to oyer, and if he pleads non est factum the plaintiff will be non-suited on the trial as it will not be sufficient in such a case that the instrument was lost or destroyed or in the possession of the defendant. But under our practice it is not necessary in any case, to make profert, and consequently it is not necessary to aver any reason or excuse for not making it.
    2. Replevin Bond — Duty of Officers in Talcing. — Under our practice, officers taking a replevin bond are required to return the same into court with the replevin writ and upon so being returned the bond becomes a record of the court.
    8. Lost Instruments — Pleadings in Suit upon. — In an action upon a lost note, it is not necessary to declare upon it specially as a lost instrument.
    4. Commercial Transactions — When Bailments and, When Sales.—
      Where the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment and the title to the property is not changed; but where there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, he becomes the debtor to make such return, and the title is changed; it is then a sale.
    5. Same— When a Person is a Purchaser and Notan Agent to Sell on Commission. — Where one takes goods to be sold on commission and it.is doubtful whether or not he has become the purchaser or mere agent to sell, one of the main tests is, if he is given an option to pay for the goods and keep them, then it is a sale of the goods and the title passes to such person absolutely, as a matter of law.
    Debt, on a replevin bond. Appeal from the Circuit Court of Cook County; the Hon. Frank Baker, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed.
    Opinion filed December 12, 1901.
    Church, McMurdy & Sherman, attorneys for appellant.
    Moses, Rosenthal & Kennedy, attorneys for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

This is an appeal from a j udgment rendered in an action of debt on a replevin bond, executed by appellant and Barbette Lehman, his surety, to Henry L. Hertz, the coroner of Cook county, in a replevin suit by appellant against James H. Gilbert, formerly sheriff of said county. The alleged breaches of the condition of the bond are that appellant did not return the goods replevied, and did not prosecute his replevin suit with effect. That there were such breaches is not controverted. It appears from the evidence that appellant dismissed the replevin suit without a trial on the merits, which fact was pleaded by appellant in the present suit, and also that he had title to the property replevied, in accordance with section 26 of the practice act. Such proceedings were had that the jury found the issues for appellee, under the instructions of the court, and found the debt to be $7,000, the penalty of the bond, and assessed the damages at the sum of $2,248.93, and judgment was rendered on the verdict.

Appellant’s counsel urge that the court erred in admitting secondary evidence of the bond, because it is not averred in the declaration that the bond was lost, and urge further that there was no proof of the loss of the bond sufficient to warrant the admission of secondary evidence of its contents. Profert of the bond is not made in the declaration, nor is its loss alleged, nor did appellant crave oyer. Chitty says:

“ But where a profert, or excuse for the want of it, is necessary, if the plaintiff profess to produce the deed when he is not prepared to do so, the defendant is entitled to oyer, and if he plead non est factum, the plaintiff will be non-suited on the trial, as it will not be sufficient in such case that the deed was lost or destroyed, or in the defendant’s possession,” etc. 1 Chitty on PL, 5th Am. Ed. 314, 315.

It will be observed that what is said in the above quotation applies only to cases in which profert, or the excuse for the want of it, is necessary; also that the consequence of failing to produce the deed, on oyer craved, after making profert, is limited to a case in which the defendant pleads non est factum. But under our practice it is not necessary in any case to make profert, and consequently it can not be necessary to aver any reason or excuse for not making it. Section 19 of the practice act is as follows:

“It shall not be necessary, in any pleading, to make profert of the instrument alleged; but, in any action or defense upon an instrument in writing, whether under seal or not, if the same is not lost or destroyed, the opposite party mav have oyer thereof, and proceed thereon in the same manner as if profert had been properly made, according to the common law.”

Again, the consequence of being non-suited, in the case put by Chitty, results from the effect of the plea of non est factum at common law. At common law that plea was not required to be verified, and it put the plaintiff on prooi of the execution of the deed declared on, whereas, by section 34 of the practice act, the plea of non est factum, to have that effect, must be verified by affidavit, which appellant’s plea of non est factum is not. In the present case, appellant did not crave oyer, and had he' so done, appellee might have alleged any matter of fact as ground why oyer should not be demanded, as, for instance, that the bond was lost. Heard’s Stephens on PL, 9th Am. Ed., Sec. 72.

By section 11 of the practice act the officer taking a replevin bond is required to return the bond into court, with the replevin writ, and the bond, on being so returned, becomes a record of the court.

At common law proferí of a record was not necessary, nor could oyer of it be demanded. Heard’s Stephens on PL, Sec. 69; Jevens v. Harridge, 1 Saunder’s Rep., 8 b.

In that case the following occurs:

“ The defendant in the common bench could not have oyer of the record of a judgment in the court of Kings ton-u'pon-Hull, because the record was not in the court of common bench, but remained in the inferior court.’’

In the present case, the declaration avers, in accordance with the fact, that the bond sued on was filed in the Superior Court of Cook County.

In a suit on a lost note, it is not necessary to declare on it specially as a lost note. Dormady v. State of Illinois, 2 Scam. 236-244.

Appellant’s counsel, in their argument, say:

“It would be manifestly unjust to permit a party to declare upon an instrument alleged to have been executed by the defendant, in such form as to lead the defendant to believe that the original itself will be produced on the trial, and then to confront him, at the trial, with secondary evidence of its contents only.”

In the present case, appellant could not have been so deceived, because he knew, as appears by evidence hereinafter mentioned, that the bond sued on was lost. We can not perceive that appellant was prejudiced by the omission -of appellee to aver loss of the bond. The fact that he did not crave oyer, as by the statutes he might have done, is evidence that he did not deem the production of the original necessary for his defense.

Albert G. Mang, deputy clerk of the Superior Court, testified where such bonds were usually kept, and that he had made a thorough search for the bond in every place where it would be likely to be, and could not find it. There was also put in evidence an order of the Superior Court in the replevin suit, of date April 10, 1897, finding that August 24, 1900, William H. Fleet and Barbette Lehman executed to Henry L. Hertz, coroner, etc., a bond, reciting the bond so found to have been executed, and ordering Fleet to present to the court within ten days a new replevin bond in the sum of $7,009; also an order made by said Superior Court, in said replevin .suit, of date July 14, 1897, as follows :

“ On motion of plaintiff’s attorneys, it is ordered that leave be given and is hereby given .the plaintiff to file a copy of his declaration, nune pro tune as of August 31,1892; and leave to file a copy of affidavit for replevin, nune pro tune as of August 23, 1892; and leave to file a copy of replevin writ and bond, nune pro tune as of September 8, 1892; alLof the same in lieu of originals lost.”

On such proof being made, the court .admitted in evidence a copy of the bond, the same in terms as the bond recited in the order of the Superior Court, of April 10, 1897, and which that court found was executed by appellant and his surety, Mrs. Lehman. Appellant’s counsel objected to the admission of the evidence, on the ground that the bond was not deblared on as lost, and that the proof of loss was insufficient, which objections were, as we think, propérly overruled. In their argument counsel urge that there was no proof that the copy offered in evidence was a true copy of the original. As to this objection it is sufficient to say that it was not made when the copy was offered, and it can not properly be made here. Had the objection been made in the trial court, we think it should have been overruled, the copy being in terms the same as the Superior Court found the original was.

We think the foundation laid for the introduction of the copy amply sufficient. Counsel for appellee contend that the order of July 14, 1897, is not binding on Mrs. Lehman, the surety; that without proof of such order there could have been no judgment against Mrs. Lehman, and, if the judgment against her is erroneous it is also erroneous against Fleet. The argument is fallacious. Mrs. Lehman has not appealed from the judgment, and is not here complaining, and she, as appellant’s surety, is bound by all the steps her principal, in good faith, took in the prosecution of the replevin suit. Cobbey on Replevin, Sec. 1314; Pirkens v. Rudolph, 36 Ill. 306, 308.

We have considered the foregoing objections of appellant’s counsel at, perhaps, too great length, because of the elaborate arguments of counsel on both sides of the questions involved. We now proceed to a consideration of the merits.

August 18, 1892, four judgments by confession were rendered in the Superior Court of Cook County against S. A. Kessler and Isidore Kolb; one in favor of H. B. Masser for $2,GOO; one in favor of Simon N. Zemanski for $3,156; one in favor of Charles Glanz for $1,500, and one in favor of Isidore Jonas and Newman Krijariski for $2,000. Executions were issued on all of said judgments on the day the judgments were rendered, but the sheriff’s returns on the executions show that the execution on Zemanski’s judgment was first received by the sheriff. The return of that execution by the sheriff, James II. Gilbert, shows that he levied the execution on all the right, title and interest of the defendants, Kessler and Kolb, in certain described personal property, describing the property, which described property includes, with other property, that taken from the sheriff by the coroner by virtue of the replevin writ issued in the suit of Fleet, the appellant, against James H. Gilbert, in the Superior Court of Cook County, which is the property in question in this case. The sheriff’s return also shows, that certain of the property so levied on was taken from him by virtue of certain writs of replevin issued from said Superior Court, among which writs was the writ issued in the replevin suit of Fleet v. Gilbert; and that August 28, 1892, he sold the remainder of the property, not so taken, for the sum of $2,441.98, of which, after deducting fees and costs, there remained $1,854.88, which he paid to the plaintiff’s attorney. The sheriff returned each of the other three executions, that he levied it on the same property on which he levied the Zemanski execution, referring to his return on that execution, and making it part of his return on each of the other executions, and stating that there not being sufficient property to satisfy the execution, he returned it unsatisfied.

The question to be determined is whether appellant can claim title to the property replevied, as against the execution creditors represented by the sheriff, and the determination of this question depends on the facts, which are substantially as follows:

William H.. Fleet, the appellant, -was a dealer in Hew York City in furs, fancy skins, goat rugs, robes, etc., and S. A. Kessler and Kolb, under the name of the S. A. Kessler Fur Company, were engaged in the fur business, including the manufacture of skins into garments, etc., in Chicago. Appellant, for about six years prior to March, 1892, had business relations with the Kessler Company and had sold them during those years about four hundred dollars’ worth of goods annually. Such being the relation between appellant and the Fur Company, the following correspondence took place:

“Hew York, March 30,1892.
S. J. Kessler, Esq., Chicago, 111.
Dear Sib: Your favor of the 25th inst. has been duly-
received and enclosed check for $1601 passed with thanks to your credit, against your note, which annexed 1 beg to return to you. For remaining 64 cts. I beg you kindly to remit to me at next opportunity' bv mail. .
I can not fill an order for 100 goat rugs at less than $2.50, and the best goods, dyed black, are $2.75, at which price I am selling thousands of them here.
In fancy color goats I am not ready yet to offer my new colors. I have large quantities of goods such as the fur manufacturers here are buying and I have no doubt that I have many bargains for you, and I try to fix matters so that I could ship you a great deal of stuff.
Most of these goods, as you know, I am selling for ac. for other people, and as the mercantile agencies do not rate you very high, I can not sell you the same outright, and guaranteeing .to my fellows for the very small commission I get, that would not pay.
My desire is to help you all I can do, as I assured you on former occasions. As I am now very anxious to help you I will do this : I consign to .you a $1,000 worth of goods which you agree to handle for ray account and hold the proceeds in trust, making settlement within thirty, sixty or ninety days, as soon as the money may be collected. How I am sure that this must be satisfactory to you, and you might send in your orders for the following goods:
Belgium Coney, red label, case lots.
Assorted 25 xx 50 xxx 25 xxxx................$2 20
25 xx................
dto black label c lots 50 xxx.............. 2 35
25 xxxx.............
24 xx................
dto blue “ “ 50 xxx.............. 3 50
25 xxxx..............
Chinchilla Hares, same as had .•................ 5 00
Silver Babbits, medium quality................. 2 75
Terms on above goods: On all money remitted within 30 days, 6 per cent off; 60 days, 5 per cent off; 90 days, 4 per cent off.
Seal, Copper Island..............$25 00 and upward.
Thibet Crosses.................. 15 00 “ “
Angora Goat, Turk skins......... 6 50
Cape Angora.................... 3 50 “
Goat Bugs, $2.50, $2.75 of black.
(Beefer) Beefer stock.
These later articles all net thirty, sixty or ninety days, as you might collect the money. .
If you want anything else, let me know. How send some orders along.
Very truly,
Wm. H. Fleet.”
“ Chicago, April 2, 1892.
Dear Friend Fleet :
Yours of the 30th at hand. Inclosed please find 64c postage stamps, amount due you on the note. Your proposition of handling your goods on consignment is perfectly satisfactory to us. I am glad you have found a way of doing business with us on safe basis which I trust will be satisfactory to both. I am only sorry that we had not made these arrangements while I was in your city for we have used at least $10,000 worth of goods since, and a great many of these goods could have been bought of you; but being in the position we are in at present, we had to buy from different houses.the goods we had orders on at terms suitable. I have often thought of writing to you for certain goods, but I have not had enough nerve to do it as I thought our limit with you is full. Sow, Mr. Fleet, I will try and do business with you satisfactory to you, and will show you that I appreciate your favors in every way.
Please send us by U. S. Express following goods:
100 goat rugs............................$2.50
100 doz. Belgium, Coney, Eed label........$2.20
50 astrachan plates, if vou have any in stock.. at...._.......................■.....$4.50
We also like to get fifty dozen of J. K. Lynx hare at $5.25. A sam’ple of silver rabbits and samples of all light color goats. If you have tiger cats, please send us all you have dressed, not exceeding 100 skins. Kindly try and keep us posted on everything new that you may get as we have the trade and can .always place it into the market. In regards to money matters, 1 wish to say to you that all the notes you have of us will be honored promptly, and we shall remit to you as fast as.we realize from your goods we may order, which shall at no time exceed the terms mentioned in your letter.
Trusting to see you in your city next month, I remain,
Y ours very truly,
S. A. Kessler Fur Co.,
Pr. S. A. Kessler.”

Under the arrangement mentioned in appellant’s letter of March 30th, assented to by the Fur Company by their letter of April 2d, quantities of - goods, including the goods in question, were shipped to the Fur Company by appellant, and were received by the company. In appellant’s brief the letters of March 30th and April 2d are referred to as “the original contract under which these goods were shipped.” There was, subsequent to April 2, 1892, other correspondence, to which, and the acts of the parties in the premises, reference will be hereinafter made. The first question is, whether, as between appellant and the execution creditors, the agreement under which the goods were delivered by appellant to the Fur Company, was or not, in law, a sale. Appellant’s letter of March 30th clearly contemplates sales of the goods by the Fur Company. It does not limit the terms or prices in sales by the company. The company is left at liberty to sell for cash or on credit, as it might choose, and in its own name. No commission or compensation is fixed for its services in making sales. There is no provision for a return to appellant of any of the goods, nor any provision for a lien on the goods. The letter does not even purport to retain any interest in the goods. The language is:

“ I consign to you a $1,000 worth of goods, which you agree to handle for my account and hold the proceeds in trust, making settlement within thirty, sixty or ninety days, as soon as the money is collected.”

Appellant’s letter indicates that he considered the transactions to take place in pursuance of his letter as sales, but differing somewhat from sales by him to other persons. He writes: “ Most of these goods, as you know, I am selling for other people, and as the mercantile agencies do not rate you very high, I can not sell you the same outright,” etc. Appellant and the Fur Company evidently contemplated that the company would sell the goods at retail and at a profit on the prices appellant charged the company. The delivery of goods to the Fur Company, under the arrangement mentioned, was not a bailment.

“ When the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment, and the title to -the property is not changed; but, when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing at equal value, he becomes the debtor to make the return, and the title to the property is changed; it is a sale.” Lonergan v. Steuart, 55 Ill. 44, 49; Wetherell v. O’Brien, 140 lb. 146; St. L. Iron & Machine Works v. Kimball, 53 Ill. App. 036; Benjamin on Sales, 6th Am. Ed., p. 5, note.

Neither was it a consignment for sale on commission.

In Upham v. Richey, 62 Ill. App. 650, 654, the court say :

“ It is a principle of law, if one takes goods to be sold on commission, and it is doubtful whether he has become the purchaser, one of the main tests as to whether he is a purchaser or mere agent to sell on commission, is, if he is given the option to pay for the goods and keep them, then it is a sale of the goods, and the title passes to the consignee absolutely, as a matter of law. It is a sale, and the goods are not the property of the consignor.”

The case cited was affirmed by the Supreme Court, on appeal, 163 Ill. 530. There can be no doubt, in the present case, that the agreement between appellant and the Fur Company contemplated that the company should keep and pay for the goods.

T. & Co. were in the habit of sending goods for sale to one FT., who was a member of the firm of N. & Co., accompanying the goods sent with a price list of them. FT. sold the goods on such terms as he pleased, and sent an account to T. & Co. monthly, debiting himself with the price given in the price list for goods sold by him, but not specifying the prices at which he had sold the goods, or mentioning the names of the purchasers. FT., in his dealings with T. & Co. acted solely on his own behalf, and not in behalf of his firm, but deposited the money received by him on sales of the goods sent him by T. & Co. with his firm, in the books of which were kept an account of the moneys so deposited and moneys drawn out of such account. The moneys so deposited with the firm were placed to the credit of the firm in their general account with their bankers. Payments made to T. & Co. on account of goods sent by them to FI. were partly by bills received by FT. from purchasers of the goods, and partly by checks of his firm. FI. Co. made an assignment, when there was a balance on their books to the credit of FI., and T. & Co. offered to prove for said balance, claiming that it was trust money improperly paid by FT. to his firm. The court held against the claim, saying:

It is clear from the course of dealing that the bargain ■was substantially this : Mr. FTevill was to dispose of the goods sent to him by Towle & Co. and was not- to pay for them unless he disposed of them, and he was to return, at the end of every month, an account of sales that he had actually made; and then, after the lapse of'another month, he was to pay in cash for the amount of the goods which he had so disposed of, according to their values as fixed by a price list sent to him. It does not appear that he ever was expected to return any particular contract, or the . names of the persons with whom he had dealt. He pursued his own course in dealing with the goods, and irequently before sale he manipulated them to a very considerable extent by pressing, dyeing, and otherwise altering their character, changing them as much as wheat would be changed by being turned into flour; and he sold them on what terms he pleased as to price and length of credit. Ho question appears ever to have beeen raised as to whether he was entitled to do this; and we must take it that he did not commit any breach of duty in so doing. That is quite inconsistent with the notion that he was acting in a fiduciary character in respect of those goods. If he was entitled to alter them, to manipulate them, to sell them at any price that he thought fit after they had been so manipulated, and was still only liable to pay for them at a price fixed beforehand, without any reference to the price at which he had sold them, or to anything else than the fact of his having sold them in a certain month, it seems to me impossible to say that the produce of the goods so sold was the money of the consignors, or that the relation of vendor and purchaser existed between Towle & Co. and tbe different persons to whom he sold the goods.” Ex parte White, L R., 6 Ch. Cases, 397; see, also. In re Linforth, 4 Sawyer, 370, U. S. Ct. Rep., 9th Circuit.

In the last case the court say :

“ By the agreement between the bankrupts and the petitioners, the latter agreed to ‘furnish’ the bankrupts goods of their manufacture, at a fixed price. The bankrupts were to pay all freight, storage, and charges on the goods shipped to them. They had the right to sell or dispose of them in any manner, and for such prices and on such terms as they chose, and were to pay, at the expiration of three months, a fixed price for all goods sold or shipped from their warehouse. They were not bound to render any account sales to their consignors. The agreement speaks, it is true, of an account of sales to be rendered by the bankrupts, but this evidently means an account or statement of the articles sold or shipped from their warehouse, for which they were to pay the agreed price every three months. They were not bound to render any account of the prices obtained by them, or of the terms of sale. At the end of the year they were bound to pay, if required, for all goods remaining on hand. It is plain that this transaction in no respect resembles a consignment by a principal to a factor, of goods to be sold on commission. It is a consignment of goods to be paid for at a price agreed upon, and which bore no relation to the prices at which the consignees might sell, or the amounts they might be able to collect.”

That the transactions were not assignments for sales on commission, is evidenced by the fact that no provision was made for the receipt of commissions by the Kessler Company.

Transactions under the agreement between appellant and the Fur Company being neither bailments nor consignments for sale on commission, the conclusion seems inevitable that they were sales.

We think it too plain for argument, that there was no privity of contract between appellant and the purchasers of the goods from the Fur Company, and that appellant could look only to the company for payment for the goods he shipped to them.

When appellant wrote the letter of March 30th and the propositions therein contained were accepted by the letter of April 2d, he knew that Kessler and Kolb were engaged in the fur business in Chicago on their own account. The agreement evidenced by those two letters, concisely stated, was that appellant would sell goods to Kessler and Kolb on a credit of thirty, sixty or ninety days, at such prices as might be agreed on between them, they to pay for the same when they should collect the money from their customers, but at least within thirty, sixty or ninety days. The agreement contains no restriction as to the name in which they should sell or the prices or the terms of sale, whether for cash or on credit, or the character of the purchasers. That the agreement evidenced by the letters mentioned was for a sale or sales, is supported by the following cases:

Chickering v. Bastress, 130 Ill. 207. Chickering & Sons, manufacturers of pianos in New York City, entered into a written agreement with Pel ton, Pomeroy & Cross to forward and deliver to the latter all pianos of their manufacture which they, Pelton, Pomeroy & Cross, might need in their business in Chicago, on terms expressed in the agreement. The court, in the opinion, states the main provisions of the agreement, on which the decision depended, as follows:

“ 1. That the prices at which Pelton, Pomeroy & Cross were to take the pianos of the Chickerings were to be agreed upon and expressed in the invoices. 2. Pelton & Co. were to pay out of their own pockets all freight charges and costs of shipment, to keep them insured for the benefit of the Chickerings, the former paying the premiums. 3. Pelton & Co. were at liberty to sell the pianos at such prices as they chose to fix upon them, and to have all they could get over and above the invoice prices, in full for all charges, commissions, expenses, etc. When they sold one or more they were to remit the invoice price to the Chickerings, and that should be in payment and discharge for the pianos so sold. 4. Advances might be made by Pelton & Co. by negotiaable paper, and when such paper was paid it should transfer the title to the particular pianos for which such paper was given. 5. All pianos delivered by the Chickerings to Pelton & Co. were subject to the order of the former, and their right to transfer, remove, sell or repossess themselves of the same, at any time, without notice.”

The court, after stating the distinction between a sale and a bailment, substantially as hereinbefore stated, and after holding that the agreement was neither a bailment nor a consignment for sale, say, in reference to the agreement:

“ Its real purpose was to cover up a sale and preserve a lien in the Chickerings.”

In respect to the attempt to preserve a lien, the court say:

“In Thompson v. Pratt, 94 Pa. St. 275, the court say : ‘ Whatever the form of the agreement, if its purpose was to cover up a sale and preserve a lien in the vendors for the price of the goods, it was void as respects creditors, whether the credit was given before or after the delivery of the goods. A consignment for such objects is no better than any other device.’ The same view was taken in Murch v. Wright, supra, where the device was a pretended lease. So, also, in Hervey v. Rhode Island Locomotive Works, supra. The cases cited are authority for the doctrine that where one party, by means of contract, but without notice to the world, suffers the real ownership of chattels to be in himself, and the ostensible ownership to be in another, the law will postpone the rights of the former to those of the execution or attachment creditors of the latter, because, to injure third persons by giving a false credit to such ostensible owners, is the natural and probable result of the transaction.” Citing cases.

In Fifield v. Farmers Nat. Bank, 148 Ill. 163, 172, the court say:

“In the sale of a chattel, when the possession of the property passes to the purchaser, a secret lien in favor of the vendor is not valid as against creditors or subsequent purchasers,” citing Chickering v. Bastress.

In Peoria Mfg. Co. v. Lyons, 153 Ill. 427, there was a contract in writing between the Manufacturing Compan}’, first party, and Weaver & Hutchins, of Virginia, Illinois, second parties, which was, in substance:

1. That the first party was to forward and deliver to second parties, farm wagons, plows, etc., as might be ordered by the second parties on commission. 2. Second parties to sell the goods at retail prices, the difference between invoice and retail prices to be their commission. ■3. The second party to be at liberty to take from purchasers of the goods, notes payable to order of second parties, they to turn over such notes to the first party with their guaranty that they should be paid at maturity, when, if not paid, the second parties should pay them. 4. Second parties to advance to first party their notes for full amount of goods ordered, when received bv second parties; said notes, however, not to be deemed a settlement; the proceeds of goods sold by second parties to be credited on said notes. 4. Second parties to keep all goods well housed and fully insured, and, at the termination of the agreement, to return all goods to Peoria free of freight, at option of first party.

The court held that the title to the property passed to Weaver & Hutchins, and was subject to the execution of a judgment creditor, which had been levied on it. The court adopted the opinion of the Appellate Court, in which the following occurs:

“The doctrines announced by our Supreme Court in the case of Chickering et al. v. Bastress, 130 Ill. 206, are applicable to tne questions here discussed, and fully support the conclusions we have reached.”

In the present case, as in the case of Chickering v. Bastress, the purpose of the arrangement was to cover up a sale of the goods, under the pretense of a consignment, and to preserve a lien to appellant on the proceeds of sales by the Fur Company. Appellant, in his letter of March 30th, which, with the letter of the Fur Company of April 2d, constitutes the arrangement under which the goods in question were sold, says:

“ I consign to you $1,000 worth of goods, which you agree to handle for my account, and hold the proceeds in trust,” etc.

It is manifest that if such trust could be created between appellant and the Fur Company, it could not affect the rights of bona fide purchasers of the goods from the latter, or the rights of its execution creditors.

Other cases might be cited to the same effect as those cited supra, but we think further citation of authorities on the question whether the arrangement was for a sale or sales, unnecessary.

It can not be successfully contended that a purchaser from the Fur Company of goods delivered to the company by appellant, under the arrangement in question, would not acquire good title to the goods purchased, free from any valid claim of appellant, and an execution creditor occupies the same position as a bona fide purchaser. Van Duzor v. Allen, 90 Ill. 499.

Both parties to the arrangement, by their subsequent conduct, treated it as one for sales. In a letter from appellant to the Kessler Co., of date April 13, 1892, he writes:

“Your order for 150 tiger cat skins and twenty-five Astrachan crosses has been booked with thanks, and, referring to same, I beg to say that I am forwarding to you, by express, the twenty-five Astrachan plates. Regarding tiger cats, would say that many of the skins come back from the dyer too poor to send to you. If you agree to take the same as they run, I can give you a couple hundred at $1.25 per skin, but not selected,” etc.

In a letter to the Fur Company of date May 26,1892, he writes:

“ Certainly you can not find any fault with my prices, as I do not know where you could buy goods, of similar quality at such cheap prices.”

In the same letter he dunned Kessler & Co., for money. Subsequently he accepted from the company two notes amounting to $447.75, which the company had received from their customers. He frequently calls on Kessler & Co. for money, but never requests a return of any of the goods delivered to them. As to Kessler and Kolb constituting the S. A. Kessler Fur Co., it is sufficient to say that they acted in all respects as if the goods sent them by appellant, under the agreement between him and them, were theirs, with liberty to do with them as they pleased.

The court gave to the jury the following instruction :

“ The court instructs the jury, as a matter of law, that the undisputed evidence in this case shows the transactions between the S. A. Kessler Fur Company and the defendant, "William H. Fleet, in respect to the goods in question, to be a sale and not a consignment, and you should, therefore, find the issue as to the ownership of said property in favor of the plaintiff.”

, This instruction is objected to. The letters of March 30th and April 2d constituted an agreement between appellant and the S. A. Kessler Fur Co. as to goods to be delivered by appellant to the company thereafter; all goods delivered by appellant to that company, including the goods in question, were delivered under that agreement, and' it was a question" of lawT to be determined by the trial court, whether the agreement was an agreement for a sale or sales. Chickering v. Bastress, 130 Ill. 214; Graham v. Sadler, 165 lb. 95.

We think the instruction correct. The court, by other instructions, left the question of damages to the jury, which, as we think, was the only question in the case proper to be submitted to the jury. It is not assigned as error, or contended by appellant’s counsel, that the damages assessed are excessive.

The motion of appellee to strike appellant’s bill of exceptions from the files will be overruled, and the judgment will be affirmed.


text:
    Andrew Sorensen v. Central Lumber Co.
    1. Interest — Defined.—Interest is defined to be the compensation which is paid by the borrower of money to the lender, for its use, and generally, by the debtor to his creditor, in recompense for the detention of the debt.
    2. Same — Unlawful Rates Prohibited. — By the statute (Hurd’s R. S. 1899, Chap. 74, Secs. 4, 5 and 6), it is lawful to contract for interest at the rate of seven per cent per annum, or for any less sum, and the acceptance or receipt by any one, directly .or indirectly, in money, goods, discount or thing in action, or in any other way, of any sum or greater value than seven per cent per annum for the loan or forbearance of money, is expressly prohibited.
    3. Same — Penalty for Contracting for a Rate in Excess of that Allowed by Law. — It any person, directly or indirectly, contracts to receive a greater rate of interest than that allowed by law, such person forfeits the whole of the interest so contracted to be received.
    4. Remittitur — Of Usury in a Judgment. — When it appears from the record that usury is an element of a judgment appealed from, and a jury has been waived in the court below, the Appellate Court may order the judgment affirmed on condition that the element of usury be eliminated by a remittitur.
    Assumpsit, on a promissory note. Appeal from the Superior Court of Cook County; the Hon. Axel Chytraus, Judge, presiding. Heard in this court at the March term, 1901.
    Affirmed on remittitur, otherwise reversed and remanded.
    Opinion filed November 21, 1901.
    Remittitur filed and cause affirmed, November 30, 1901.
    Ernest Saunders, attorney for appellant.
    Elmer H. Adams, attorney for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

January 26, 1899, appellant executed to appellee a promissory note for the sum of $1,025, payable on demand, with interest at the rate of six per cent per annum after date, annexed to which is a power of attorney, in the usual form, to confess judgment for the amount due on the note, with costs and $25 attorney’s fees. April 9,1900, judgment was confessed in the Superior Court, by virtue of said power of attorney, for the sum of $405.45. April 25,1900, the court, on appellant’s motion, ordered that appellant have leave to plead, the judgment to stand as security. Appellant pleaded several pleas, and the cause was heard by the court, without a jury, and the court found the issues for appellee and assessed appellee’s damages at the sum of $398.26, whereupon appellee remitted $7.19 from the judgment' entered April 9, 1900, and the court rendered judgment that the said judgment of April 9, 1900, stand for $398.26, from which last judgment appellant appealed. Appellant pleaded, among other things, usury. It appears from the evidence, and is admitted by counsel for appellee in his argument, that Sorensen, the appellant, applied to appellee for a loan of $1,000 to lift a mortgage on a lot of his, and that appellee loaned him only that amount, but required that he should give his note for $1,025, which he did, and which is the note in suit. Sorensen testified that $25 was included in the note for the use of the money, as commission. Gilman, a "witness for appellee, testified that he was present when the money was loaned by appellee to appellant, and that the agreement was that appellant was to pay $25 for the use of $1,000, and to repay the money loaned in three or four weeks.

Interest is defined to be, “The compensation which is paid by the borrower of money to the lender, for its use, and generally, by a debtor to his creditor, in recompense for his detention of the debt.” Bouvier’s Law Dictionary.

Appellee is not a broker, but a lumber company; and there is no evidence, nor is it claimed that the money loaned was not appellee’s money. Therefore the $25 can not be claimed as commission. Clearly, it was contracted for as interest, and must be so considered in estimating the amount due. On the hypothesis that the note would remain uncollected for a year, the interest contracted for would be interest on $1,025 at six per cent per annum, $61.50, plus $25, or $86.50, which is at a rate exceeding eight and one-half per cent per annum on $1,000, the amount loaned. By the statute it is provided that it shall be lawful to contract for interest at the rate of seven per cent per annum, or any less sum, and the acceptance or receipt by any one, directly or indirectly, in money, goods, discount or thing in action, or in any other way, of any sum or greater value than seven per cent per annum, for the loan or forbearance of money, is expressly prohibited, and it is further provided, that if any one shall contract to .receive a greater rate of interest than seven per cent per annum, such person shall forfeit the whole of the interest so contracted to be received. Hurd’s Eev. Stat. 1899, Chap. 74, Secs. 4, 5 and 6.

In this connection it might be well to rémember Coke’s advice: “To them that lend money my cavest is that neither directly nor indirectly, by art or cunning invention, they take above ten in a hundred; for they that seek by sleight to creepe out of these statutes will deceive themselves, and repent in the end.” Coke upon Littleton, L. I, C. 1, Sec. 1, 4 a.

April 9, 1900, the appellee was entitled to recover only the balance then due of the principal sum of $1,000, plus $25, authorized by the warrant of attorney to be included in the judgment as an attorney’s fee. It appears from the evidence that $700 was paid on the note, $200 of which was paid April 21, 1899, and $500 of which was paid December 29, 1899, leaving the balance due on the note without interest April 9, 1900, $300, for which amount, plus $25, or $325, the judgment should have been.

Appellant claims that he made other payments on the note in addition to those above mentioned, but it appears from the evidence that he had a lumber account with appellee, and, we are of opinion that the court was warranted by the evidence in finding such other payments were on the lumber account and not on the note.

On the appellee filing, within ten days, a remittitur of the sum of $73.26 on the jndgment of February 1, 1901, for the sum of 398.26, said judgment will be affirmed for the sum of $325, in which case the judgment of April 9, 1900, will remain a judgment in full force and effect for the sum of $325 and costs; otherwise the judgment of February 1, 1901, appealed from, will be reversed and the cause remanded. Appellant, in dither case, to recover his costs of this court. Affirmed on remittitur, otherwise reversed and remanded.