| Ill. | Sep 15, 1873
delivered the opinion of the Court:
It is not seriously contested that the property in controversy Ávas pledged to appellants, and it. is conceded that it was converted by appellee. The only question discussed in the briefs before us, and to which we have thought it necessary to direct our attention, is, what, under the evidence, is the measure of appellants’ damages ?
As against a mere wrongdoer, the appellants would be entitled to recover to the extent of the full value of the property converted ; but we do not consider appellee as standing in that light. His conversion was made in executing certain writs of attachment against Kiernan, the party by whom the pledge was made, and we have no reason to assume that they were not regularly and properly issued. In that view of the case, the appellee occupies the same position that Kiernan would, had he made the conversion and the suit been brought against him.
It is contended by appellants that they are entitled to recover the amount which the 22 barrels of whisky Avere pledged to secure, Avith the interest agreed to be paid thereon, and proper charges made in respect to the pledge, including inspection and storage, Avhile appellee insists, Avithout denying that appellants are entitled to be paid these items, that the 20 barrels of Avhisky taken on the Avrit of replevin should be charged against appellants, and that their recoArery should be limited to Avhat may then remain due from Kiernan, on account of both pledges ; and it is argued, that it would not only be equitable, but that it is legal to treat the loans and pledges made on the 29th day of March and the 18th day of April as one transaction. Were we inclined to take this view of the case,, we are unable to perceive how, upon correct legal principles, it could materially better the condition of appellee. In all cases the pledge is understood to be a security for the Avhole and for every part of the debt or engagement, unless it is otherwise stipulated between the parties. Story on Bailments, sec. 301. If several things are pledged, each is deemed liable for the whole debt or other engagement; and the pledgee may proceed to sell them, from time to time, until the debt or other claim is completely discharged. If one thing perishes by accident or casualty, without his default, he has a right over the residue for his whole debt or other duty. Ibid. sec. 314.
But the character and extent of appellants’ lien must alone be determined by the contract between them and Kiernan, and from it Ave must learn Avhether the 20 barrels of Avhisky should be appropriated to the payment of the amounts Avhich the 22 barrels Avere pledged to secure. It is said in Story on Bailments, sec. 304 : “The mere existence of a former debt due to the pledgee does not authorize him to detain the pledge for that debt, Avhen it has been put into his hands for another debt or contract, unless there is some just presumption that such Avas the intention of the parties. The like rule applies to a subsequent debt or loan contracted by the pledger, for in such case the new debt or loan will not be deemed to attach to the pledge, so that the pledgee may retain the same therefor, unless, from all the circumstances, there is just ground of presumption that the new debt or loan Avas made upon the credit of the pledge, and was so understood by the parties. The rule in all these cases strictly applies, that the particular contract is to govern the rights of the parties. Modus et conventio vineunt legem.”
Here, íavo loans Avere made, for $900 each, for the period of 30 days. The amount to be paid on the first loan for money advanced, use of money, and charges of inspection and storage, Avas $962.95; and on the second loan, for the same items, the amount to be paid Avas $962.36. The first loan Avas made on the 29th day of March, and the 22 barrels of whisky noiv in controversy Avere pledged to secure its payment. The second loan was made on the 19th dav of April, and the 20 barrels of whisky replevied were pledged to secure its payment. The 22 barrels of whisky are shown to have been more valuable than the 20 barrels by some 50 cents on the gallon. We have looked in vain in the record to find any evidence that either of these loans and pledges were, by the contracts between appellants and Kiernan, dependent upon the other. It is not shown that when the first loan was made a future loan was anticipated, and when the second loan was made, it does not appear that the first loan was at all alluded to ; but, upon the contrary, it does clearly appear that each loan was secured simply by the pledge then made. Under this state of the proof, we have no hesitancy in coming to the conclusion that the 20 barrels of whisky were alone pledged for the payment of the $962.36, then agreed to be due from Kiernan to appellants, and that the appellants retained an interest in the 22 barrels of whisky in controversy, for the $962.95 agreed to be due from Kiernan to appellants at the time they were pledged, for which they are now entitled to recover, unless the amount has been paid or the lien released by appellants.
It is not claimed that this amount has been actually paid to appellants, but only that the recovery of the 20 barrels of whisky on the writ of replevin should be treated as a payment to the extent of their value. We are unable to appreciate the force of the argument in support of this position. The authorities cited only go to the extent of holding that it is competent to show, in mitigation of damages, that the debt has been paid or reduced. That is not denied, but no such'question arises here. Here, the evidence shows merely that 20 barrels of whisky were taken on a writ of replevin, and placed in the possession of appellants. It is not shown that they were sold by appellants, or that they converted them to their own use. The property is, by the writ of replevin, merely placed where it was before it was seized under the attachments' —in pledge. It is no more appellants’ private property now than it was before the seizure. It is still subject to be redeemed upon equitable principles, and, before the absolute ownership is changed, the property must be sold for the satisfaction of appellants’ lien, pursuant to law. If the evidence showed a complete conversion of this property to appellants’ use, inconsistent with its mere retention as a pledge, we would doubtless hold that they should be chargeable with its value; but we have been unable to find any such evidence in the record.
In Bailey v. Godfrey et al. 54 Ill. 508, trover was brought for the recovery of a quantity of wool, which had been secured to the plaintiff by a chattel mortgage, and which was subsequently sold by the mortgagor to the defendant. One of the defenses interposed ivas, that other property had also been mortgaged to secure the payment of the same debt, and that the plaintiff could not recover from the defendant unless it was shown that that property ivas insufficient for its payment. The court held that it was not incumbent on the plaintiff to make this proof; that the defendant might, in reduction of the mortgagor’s interest in the property, have pleaded that other property was embraced in the mortgage, and that the plaintiff had reduced the same to possession in reduction of his mortgage indebtedness, but that the burden of proving these facts was on the defendant.
It necessarily follows, from the views we have expressed, that appellants had a lien on the 22 barrels of whisky, to the amount of $962.95, and that they were, under the evidence before us, entitled to judgment for that amount.
Appellee is in no condition to complain of the hardship Avrought him by this result. He unnecessarily became his own judge of the legal rights of the parties, refused to surrender the Avhisky to the officer upon the writ of replevin, and must hoav necessarily bear the consequences.
The judgment of the court beloAV is reversed, and the cause remanded for further proceedings not inconsistent Avith this opinion.
Judgment reversed.