Hunter v. Mathewson , 1888 Ill. App. LEXIS 497 ( 1888 )

McAllister, J.

Abrams being indebted to defendant Hunter upon a general balance for advances made by the latter to the former in the same line of business, Hunter would, if no sufficient reason to the contrary were shown, have been entitled to a lien on the cattle in question for such advances, when taken into his possession with the assent of Abrams, to be sold by Hunter as such commission merchant, and upon the proceeds of the cattle, the moment they were received. 1 Jones on Liens, Secs. 418, 468, afid cases in notes.

The plaintiffs, in order to establish their right to said proceeds and defeat said lien, gave evidence tending to show that they sold and delivered the cattle to Abrams; that he paid them of the purchase price $390 in money and for the balance gave his draft on the defendant, set out in the statement of the case, then delivered to them a copy of one of the duplicates of the live stock contract which the railroad company and Abrams had entered into, indorsed in blank by the latter, but in which the plaintiffs are in no wise mentioned.

The case seems to have been tried partially upon the theory that the transaction amounted to a sale and symbolical or constructive delivery of the cattle by Abrams to the plaintiffs below, and had the effect of passing to the latter the absolute title to the cattle, and partially upon the theory that the plaintiffs had acquired only such interest in the cattle or proceeds as would prevail over the defendant's lien, by showing notice to him of their rights, and an implied waiver on his part of his lien.

In order to lay the proper foundation for an implied waiver on the part of defendant it was necessary that the evidence as to facts and circumstances tended to show that the defendant had notice of plaintiffs’ interest in the cattle or the proceeds, before, or at the time of taking possession of them for the purpose of selling them. We think the case of Darlington v. Chamberlain, 20 Ill. App. 443, and all the authorities there cited sustain that view.

The counsel for appellant seems to suppose that unless the railroad company issued to Abrams what is known as, or equivalent to, a bill, of lading, in which the name of the consignee is mentioned, there could be no such absolute sale and symbolical or constructive delivery of the property as would give plaintiffs priority over defendant without actual notice to him. A bill of lading, or its equivalent, is not indispensable. If a sale was actually intended and made in the usual course of business, an invoice or other instrument which specifies and enumerates the property sold, may be substituted for a bill of lad ingin constituting a symbolical delivery. Gibson v. Stevens, 8 How. 384; Davis v. Bradley, 24 Vt. 55; Gardner v. Howland, 2 Pick. 599; Davis v. Bradley, 28 Vt. 118; Holbrook v. Wight, 24 Wend. 168.

The question whether or not the transaction between Abrams and the plaintiffs was a sale, was a question for the jury, involving the fact of intention of the parties, and whether it was in accordance with the usual course of business, as to which there was a conflict of evidence. The transfer of the live stock contract did not pass the title by its unaided operation, and could operate only as evidence of a sale and a symbolical transfer of possession. Smith’s Lead. Cas., Vol. 1, Part 2, p. 1206, Lickbarrow v. Mason.

It was for the jury to look at all the circumstances and to determine the character of the transaction. Holbrook v. Wight, supra. But as appears by the instructions for plaintiffs, set out in our statement of the case, the court took all ¿hose questions from the jury, as was done with nearly all the questions of fact in the ease, and decided for itself the character and effect of the transaction, with no facts whatever snbEnitted to the jury as the basis of that conclusion.

In the sixth paragraph of the said instructions the court directed the jury that the question for them to try was whether, on the evidence, the defendant was a bona fide purchaser of the cattle shipped to him as shown in evidence, to tiie extent of his demand against Abrams.

Ho sncli question was in issue upon the trial A factor enforcing his Hon stands in no sense in the position of a purchaser. Such a direction was calculated to mislead and confuse the jury.

The last paragraph seems to be independent of all others, and reads thus: “If yon find from the evidence that when the cattle arrived and were sold, he (Abrams) urged defendant to pay the draft and protested against his deducting his indebtedness to him from the proceeds of the cattle, then the defense fails in both points.”

Unless it be the law that the principal may defeat the factor’s lien after it has attached, by his arbitrary directions to pay the proceeds to somebody else, that instruction was erroneous. We are aware of no such rule of law.

The practice of giving instructions in which the court assumes to pass upon the facts of the case, is not sanctioned, but condemned by the Supreme Court in repeated instances. Bail-road Co. v. Moranda, 108 Ill. 576; Town of Evans v. Dickey, 117 Ill. 291.

We are of opinion that in one aspect of the ease the evidence offered by the defendants to the effect that prior to shipping the cattle in question it was agreed between Abrams and defendants that defendants might be paid their advances out of the proceeds, would become material. It was therefore competent. For the errors pointed out, the judgment of the court below must be reversed and the cause remanded.

Iteversed and remanded. ■