Trustees of Glidden & Curtis v. Warren , 50 Ill. App. 193 ( 1893 )

Opinion of the Court,

Gary, P. J.

The appellants, Bell and his associates, are trustees under a deed of assignment of the firm of Glidden & Curtis of Boston. Another appellant is the First Hational Bank of Columbus, Ohio. The appellees are all attaching creditors of the Ohio & Western Coal & Iron Company, and the fund in controversy, over $30,000, is in the Circuit Court, in a suit commenced by a bill of interpleader filed by the Pullman Palace Car Company.

November 3, 1887, the Goal & Iron Company and the firm of Glidden & Curtis executed an agreement containing these clauses:

“ First. The said firm are to sell or supervise and control all sales of said corporation’s articles and products, and they are to furnish advances on said corporation’s products according to its needs to such extent as they shall consider themselves safely secured therefor at current rates of interest and exchange, and they are to render accounts of sales monthly to said corporation, and charge their commissions at the rate of ten (] 0) cents per ton on the sales of the coal, and two and one-half (2-}') per cent on sales of iron.

Second. All articles and products of the said corporation are to be and are hereby consigned to said firm.

Third. This contract is to continue in force for five (5) years from the thirty-first day of October, 1887.”

Acting under this agreement the amount now due to Glidden & Curtis from the Coal & Iron Company, greatly exceeds the fund in court.

One Walter C, Wyman was the Chicago agent of Glidden & Curtis, and under his authority, in fact as such, but without notice thereof to, made a contract with the Pullman Company in the name of the Coal & Iron Company, under which the coal, the price of which is the fund in court, was delivered.

February 8, .1889, the bank held two notes of $10,000 each, made by the Coal & Iron Company, and indorsed by Glidden & Curtis, becoming due (without grace) on the 9th and 11th of that month. On that 8th day of February the bank learned that Glidden & Curtis had that day made an assignment, and the next morning obtained from the Coal & Iron Company an order as follows:

“ Columbus, Ohio, February 8,1889.

To The Pullman Palace Car Company, Pullman, 111.

Please pay to the First National Bank of Columbus, Ohio, or order, the sum of twenty thousand dollars of the money owing by you and to become due to us on or about the 15th day of February, and the 15th day of March, 1889; value received by us, and charge the same to our account.

The Ohio & Western Coal & Iron Co.,

By H. C. Stanwood, Ass’t Treasurer.”

Neither the bank nor the Pullman Company had any notice of the relations between the Coal & Iron Company and Glidden & Curtis. Upon these facts, which we assume, and do not attempt to prove by collating the evidence, and which will not be conceded to be the facts by any party but the bank, we hold—without undertaking to prove—the law to be, that the bank is entitled to be first paid from the fund in court, the amount remaining unpaid upon the order, which is $16,676.79 after deducting moneys received from other sources, and the residue thereof, after deducting costs and expenses properly chargeable thereon, belongs to Bell and his associates, the trustees.

' The decree of the Circuit Court giving it to the attaching creditors is therefore reversed and the cause remanded with directions that the distribution be thus made:

First. Pay to the First National Bank of Columbus, Ohio, the sum of $16,676.79, with interest at five per cent per annum from March 1, 1889.

Second. Pay the net residue to the appellants, Bell, Stowe and Morrison. And that the Circuit Court award to the said appellants respectively their costs against the said attaching creditors, appellees here. Reversed and remanded.