John Matthews Apparatus Co. v. Neal , 89 Ill. App. 174 ( 1900 )

Mr. Justice Barker

delivered the opinion of the court.

Counsel for appellant urge a reversal of the judgment in this case because of insufficiency of the levies of the writs under Avhich appellees, as officers justified, and because the property levied upon was not the property of Magill & Co., but the property of appellant.

The first contention is predicated upon the fact that the officers did not take actual control and possession of the property at the time of indorsing the alleged levies upon the writs. The contention may be dismissed with the remark that appellant, having charged in the affidavit on Avhich the replevin writ issued and the declaration, that the officers held possession of and Avrongfully detained the property, is in no position to urge invalidity of the levy for the reason that the officers did not take control and possession of it.

We do not think the soda fountain apparatus was subject to levy as the property of Magill & Co. Our opinion is not based upon the stipulation contained in the written order set out in the statement of facts, that title to property should remain in appellant until all payments for it should. be made, but upon the fact that Magill & Co. failed and refused to comply with the terms of the order; that they at all times disclaimed ownership in the property, and before it was levied upon turned it oxmr to Fitzsimmons as the property of appellant.

The terms upon xvhich the property was shipped were a cash payment of $65 on receipt of the fountain, and simultaneously therewith, the execution of promissory notes for $805.13, payable to appellant and secured by a chattel mortgage. Magill & Co. failed to make the cash payment and refused to execute the notes and mortgage. It is contended that the refusal was based upon a claim of Magill & Co. that the apparatus leaked. The cashier of the bank holding the draft and other papers, testified that such was his recollection and that the papers were returned for that reason. There is no testimony in the record showing that the apparatus did in fact leak; but it is undisputed that Magill & Co. refused to pay the cash drafts and refused to execute the notes as proxdded by the terms of their order. The record is barren of any evidence tending to show that Magill & Co. ever treated the sale as completed or assumed to be the oxvners of the property. Upon the contrary, they at all times, so far as the evidence discloses, disclaimed to be the oxvners of the property, and when they sold out their restaurant outfit expressly reserved the fountain and told their purchaser that appellant was the owner of it. They put it in the possession of their purchaser and directed him to notify appellant that he held it subject to appellant’s order.

Counsel for appellees cite the case of Gilbert v. The National Cash Register Co., 176 Ill. 288, in support of the judgment beloxv and as decisive of the controversy. That case is clearly distinguishable from the one at bar. There the purchaser, W. H. Luther, gave to the Cash Register Company a written order, similar to the one given in this case, in which he agreed to pay for a cash register $25 in cash and ten promissory notes for $15 each, payable monthly. The register was delivered, and being satisfactory was accepted. As the order contained the agreement that the register should remain in the possession of the purchaser, but title in the vendor until payment of the notes should be made, the parties treated the order as a chattel mortgage and had it acknowledged and recorded as such. A few months afterward the register, with other property in possession of Luther, was levied upon by virtue of an execution against him in favor of one Matthews, and sold by the sheriff. The national Cash Register Company brought suit against the sheriff and recovered the value of the register. The question before the Supreme Court was, whether the written order was a chattel mortgage within the meaning of the statute, and it was held that it was not. The question here is, whether the sale was complete. We hold that it was not. The property was not accepted in compliance with the order, and at the time of being levied upon was not even in the possession of the defendants in the execution.

The judgment of the court below will be reversed and the cause remanded.