48 Ill. App. 386 | Ill. App. Ct. | 1892
Opinion of the Court, the
A premium of $500 was awarded by the St. Louis Fair Association for the exhibition of a stallion and five of his colts. The successful stallion belonged to Capt. A. Hulse; the colts, one to the appellee, two to the appellant, one to a Mr. Bigsby, and the other to a Mr. Cundall. By consent of the owners, these animals were exhibited together, being, while at the fair, in charge of the appellant, who defrayed the expenses of all of them. The colt of appellee was accompanied by its dam, and while at the fair the appellant, without the knowledge of the appellee, entered the dam as a competitor in the “light roadster” ring and obtained the sum of $50, awarded as premium upon the mare. The appellee claimed that the appellant received a one-sixth part of the $500 belonging to her as the owner of one of the colts, and brought this, an action upon the common money counts, in assumpsit, to recover such one-sixth portion and also the premium of $50 awarded for the exhibition of the mare in “ roadster ring.” A trial before the court, without a jury, resulted in a judgment in favor of the appellee for the amount claimed, less $25 allowed the appellant for the expenses, his compensation, etc. This is an appeal from that judgment. As to the $50 premium received by the appellant upon the mare, no defense whatever appears, nor is any seriously urged. The appellee sought to show that by agreement between her husband, as her agent, and Capt. Hulse, the owners of the animals exhibited together were to pay the expenses and share equally the premium, if a premium was obtained. It may be conceded, however, that the evidence does not sufficiently connect the appellant with this arrangement to bind him. The appellant sought to prove that Capt. Hulse was the agent of the appellee, and in that capacity contracted with him to take appellee’s colt with the others to the fair at his (appellant’s) expense, the premium, if any, to belong to the appellant.
The proof, however, fails to show that Capt. Hulse had authority to make such contract for the appellee. The rights of the parties can not, therefore, be made to depend upon either of these alleged agreements. It appears, however, that the premium awarded the stallion and colts was paid to Capt. Hulse, who disposed of it, to quote his testimony, as follows: “ I divided it into six pieces. I took out the amount for my horse and then said to Dorsey (the appellant), there is six—you have charge of three. Here is your three—the Williams colt and your two colts is three. Here is 0250 and here is Rigsby’s money, take that to him, and Cundall’s I will take to him.” Ilulse thereupon paid the appellant, Rigsby, one-sixth and $250, being the amount for the two colts of his own and the colt of the appellee. One-third of this $250, in the absence of any agreement to the contrary, was the money of the appellee, and which, ex aequo et bono, the appellant ought not to retain. We have seen that no agreement giving the appellant this money was proven.
Ho reason is perceived why the appellee should not recover it, for which purpose assumpsit for money had and received is the appropriate remedy. Taylor v. Taylor, 20 Ill. 650.
As the owners of these animals were engaged in a common undertaking, the design of which was to secure a sum of money, offered for the display of all the animals together, they are not to be classed as strangers in the execution or completion of the enterprise. They were in privity with each other, and a direct promise to pay would not be necessary to enable either to recover from another money received by the latter as the share of the former in the premium money.
Appellee became the owner of the mare and colt by transfer from her husband, not in writing and recorded, as required by Sec. 9, Chap. 68 of the Eevised Statutes, for which reason appellant contends that appellee has no right of recovery.
Transfers of personal property between husband and wife are valid under the statute, though not in writing, except as against the “ rights and interests of third persons.”
The appellant has and had no right or interest in the property to be affected by the transfer, and as to him the statute has no application.
It is strenuously insisted that the court received incompetent testimony, and a reversal is asked for that reason. Without conceding that this criticism upon this action of the court is correct, it is sufficient to'say, we think there is abundant evidence in the record to support the finding and judgment of the court, if all that is objected to as improper be rejected, and no doubt this was the view of the trial judge.
When a cause is tried by the court the presumption is that only proper evidence was considered, and, in such caso, the admission of improper evidence does not warrant a reversal if there is enough beyond that to support the judgment. Mer. Des. Trans. Co. v. Joesting et al., 89 Ill. 152.
Finding no error, the judgment is affirmed.
