53 Ill. App. 506 | Ill. App. Ct. | 1894
delivered the opinion of the Court.
The appellee, as sheriff of Livingston county, was sued by appellant in an action of replevin to recover 57,000 brick levied on by the sheriff, by virtue of an attachment writ issued out of the Circuit Court in favor of Bruner & Strong, attaching creditors, against W. Z. Partello, claiming the sum of $806.76, judgment for which was rendered against Partello in the attachment suit.
The appellant was the manufacturer of brick and sold them, as it insists it supposed at the time, through the agency of said Partello, to the board of trustees of the State Reformatory at Pontiac, which was building a State Reformatory at that place. The cause was tried by the court without a jury by consent of both parties, and after a hearing of the case, found in favor of appellee, and the court rendered judgment in his favor and ordered a return of the brick to him. From this judgment this appeal is taken. The appellee contended on the trial that the brick were the property of Partello, the attachment debtor, who had a contract to erect the building and failed, owing the attaching creditors the sum sued for on account of other material furnished him by them. The contention on the trial was, as to whether appellant sold the brick to Partello on his own account, or to him, as it supposed, as agent of the board of trustees.
If the property was not that of Partello and was in his possession fraudulently, or given to him under the supposition of his agency, then the appellant ought to recover.
The contention of the appellant is, and was, that the title in the property was in it, and neither in the board of trustees nor Partello; that the latter got possession of the brick by means of fraudulent representations to the effect that he was purchasing them for the board of trustees, etc., and as its agent, when in fact he was not doing so, but by that means obtained fraudulent possession of the brick.
The appellant took the burden of proof on itself to show title in the brick, and to attain this result, produced Christian Steinmayer, the- salesman and agent of appellant, who testified in substance, that the brick were intended to be sold to the board of trustees of the reformatory and not to Partello in his own right, and that he, as sole agent, did not know that Partello had any contract to build the building, and the brick were charged to and shipped to Partello as a mere matter of convenience, not intending to be a sale to him. The different letters to appellant from Partello were produced, which showed, apparently, that the brick were being purchased by the board of trustees of the reformatory.
It is insisted on the part of appellee that the letters are not inconsistent with the idea that Partello was himself the purchaser, but only showed that he would, or could, not purchase them until inspected and accepted by the trustees.
The letters, however, it seems to us, will not bear that construction. Some of them may be reasonably explained in that way, but not all.
Samples were required to be sent by appellant to the reformatory for inspection and passed on by its board before any brick could be received. In the letter dated Chicago 10-13, 1892, to appellant by Partello, he states that the amount of brick required for the Pontiac job was about 200,000, and it had been decided between the appellant and the Keokuk Brick Co., and in a postscript he says: “ I will endeavor when going down to have the commissioners give you the full order.”
Then after the appellant’s brick were adopted Partello, by letter November 2, 1892, orders the brick to be sent “so that they (the board of trustees) can see how they run, and the bill of lading to him.” The brick were then sent him on this order.
On the 23d of January, 1893, Partello wrote to appellant that he had “ met the board of managers of the Reform School while in Pontiac, and they will meet on February 6th to approve of the amount, so I will arrange to settle your bill.”
It seems from those letters and the testimony of Steinmayer, that the sale was represented to be to the board of trustees of the Reform School; that the appellant did not intend to part with the title to Partello and accept him as paymaster.
The evidence, we think, made out a prima facie case for the appellant. The proof of the admissions of Partello that appellant owed him nothing for freight was sufficient. The only legal evidence produced by appellee tending to show title in the brick in Partello, was the fact that they were charged to him on appellant’s books and the bill of lading in his possession; but these facts were consistent with the claim of appellant that they were charged and sent in his name for convenience, and he had requested the bill of lading to be made out in his name.
Hot having parted with its title to the brick to Partello or intended so to do, appellant could not be defeated of its title by either sale by Partello to a third party or by attachment proceedings against him. The evidence of the statements of Brown, an employe of Partello, and by Downs, the architect, to the effect that the brick were Partello’s and that there was no claim against them, admitted by the court in evidence against the objection of the appellant, was not competent. These parties were not in any sense agents of Partello or appellant to make any such admissions against him or it. It was mere hearsay.
The copies of letters written by appellant to Partello offered in evidence by appellant and rejected by the court were properly rejected. There was no proper foundation laid for the introduction of secondary evidence. They were not copied into the record, and we can not see whether they were pertinent or not. Appellee not being in possession of the original or entitled thereto, could not be expected to produce the originals on notice. Appellant should have subpoenaed Partello with, the originals. There is an intimation in Dwellinghouse Ins. Co. v. Butterly, 133 Ill. 534, that where a case is tried by the court and improper evidence is admitted against the objection of either party, and exception is saved to the ruling, that such action can be assigned for error in the Appellate Court. If this be the law the court below erred in admitting the hearsay of Brown and Downs as to Partello’s title.
The order of retorno Tiabendo entered by the court was proper in the event of finding for appellee. Appellee was the party out of whose possession the brick were taken, and if wrongfully, he was the party to whom the return should be made and which appellant’s bond required.
We are of the opinion the evidence did not warrant the finding of the court. The judgment is reversed and the cause remanded.
