McCausland v. Wheeler Savings Bank , 1891 Ill. App. LEXIS 370 ( 1891 )

"Waterman, P. J.

If a consignee takes a consignment with, knowledge that a draft has been drawn against it, he can not retain the consignment or its proceeds and repudiate the draft. Hall v. Bank, 133 Ill. 234; Jones on Liens, Sec. 61.

Whether appellants took the consignment of the last two cars of stock shipped by Harrison with notice that a draft or drafts had been drawn -against such shipments, was a question of fact, which has'been found against appellants.

From the entire course of dealing appellants had (when they received the last two cars) reason to believe that drafts, discounted by appellee, had been drawn against these shipments, and Mr. Hoag of their firm testifies that he thinks they knew that Harrison hád made a draft against them.

The precise hour at which the letter written by Harrison December 26th, in which he stated that he had drawn on them for §1,337 and had started the stock to get in by the time the “stock” did, was received, is not shown, but appellants do not testify that when they received these consignments they had no notice that any draft had been made against them. The expression in this letter, “ Had started the stock to get in by the time the stock did,” they can not have failed, and do not claim to have understood as meaning otherwise than “ had started the stock to get in by the time the draft did.” A consignor may always direct as to the disposition of the net proceeds of a consignment. If appellants did not care to obey the directions of Harrison as to the disposition of the proceeds of the cattle, they should have declined to receive them; if, having-notice that Harrison had made a draft against the proceeds of the shipments, they saw fit to receive and sell the cattle, then they became bound to apply the proceeds to the payment of the draft. That they had such notice the Circuit Court has found and we think the evidence warranted its conclusion.

The question is not so - much whether the bank discounted the drafts on the faith of the shipments, as whether Harrison, the consignor, by the drafts appropriated the proceeds of the shipments to their payment, and whether appellants had notice when they received the stock of such appropriation. If appellants were notified by Harrison when they received the shipments that drafts in favor of a third person were to be paid out of the proceeds of the stock, then such notification in connection with the drafts amounted to an appropriation of the proceeds to the payment of such drafts. Jones on Liens, Sec. 61. u

We see no sufficient reason for interfering with the finding of the court below and its judgment must be affirmed.

Judgment qffh'med.