Williams v. Wallace , 1896 Ill. App. LEXIS 908 ( 1896 )

Mr. Justice Shepard

delivered the opinion oe the Court.

This was an action of replevin brought by appellee to recover certain plumbers’ tools and stock in trade, which had been levied upon by the appellants as the property of the firm of Aiken & Jorgens, valued at $250.

The circumstances under which appellee claimed the property were in substance as follows:

Said firm, in order to secure appellee for giving her note for their use for $276.89, dated July 31, 1895, and payable sixty days after date, made and delivered to appellee an absolute bill of sale of the property in question, situated in their shop. There was, within a week afterward, a foirnality gone through by the parties of delivering possession of the property by handing to appellee the key to the shop, which she at the same interview returned to them, and they kept on in possession and doing business, as before, until September 6th following.

On September 5th word was sent by one of the firm to the appellee that the other member of the firm was collecting money of the firm and not accounting for it, and that she had better take steps to protect herself.

Accordingly, on September 6 th, she went to the shop and finding nobody there, she managed, with assistance, to obtain admittance a little after noon, and certainly before two o’clock in the afternoon, and took possession of the property in question by virtue of the bill of sale.

She then put a padlock upon the door, nailed up her own cards on the door, and placed a custodian in possession, who remained there continuously, except when relieved by the appellee for time to get his meals, during the day and night, and until the executions in question were levied and the property taken from appellee on the following morning.

The judgments upon which the executions were issued were recovered before a justice of the peace on the afternoon of September 6th, and the executions thereon were issued and delivered to a constable ten or fifteen minutes before three o’clock of that afternoon.

The cause was submitted to the court without a jury, and he found in favor of the appellee.

There was some conflict in the evidence concerning the fact of possession by the appellee prior to the delivery of the executions to the constable, but we must regard the finding of the trial court in that matter as final, and we may add justifiably so, in our opinion, upon a fair review of all the evidence.

The appellants submitted to the trial court twenty propositions of law, of which one-half were held and the other half refused.

Complaint is made that the holding of some of such propositions and the refusal of others manifested an inconsistency by the court in the view it took of the law of the case. That does not necessarily follow. The court was not bound to hold as law every proposition that the appellant chose to submit, and the holding of one of two propositions, both of which embodied the same principle of law, was all that the court was bound to do, or that the appellants had a right to ask. We have examined the propositions in respect of which fault is found, but find no error.

"Under the evidence the appellee had a clear right to take possession of the goods described in the replevin writ, either with or without the consent of her vendors, and having done so before the executions became a lien upon them, her right to maintain replevin for them was secure; and she having been obliged to pay the note, for indemnity or security against which the bill of sale was made to her, it would be palpably unjust that appellants should be permitted to keep the goods from her.

The judgment was right, and it is affirmed.