Wenham v. Wilson , 1906 Ill. App. LEXIS 766 ( 1906 )

Mr. Presiding Justice Freeman

delivered the opinion of the court.

Appellant seeks to reverse this decree upon the ground that the Circuit Court erred, first, in finding that the settlement between Melican and appellant on or about February 9, 1903, included the two notes in controversy, namely, one dated. December 2, 1902, for $500, and one dated. January 9, 1903, for $250; second, in finding the value of the goods seized by appellant under the chattel mortgages given to secure said notes to be $1,500; and third, in allowing interest on such valuation.

The first of these contentions, namely, that the two notes originally representing loans of $750, were due and unpaid when appellant seized merchandise belonging to Melican just before the filing by the latter of a voluntary petition in bankruptcy, is a question of fact. There is evidence tending to sustain the finding in this respect. It sufficiently appears from conceded facts that appellant was able to dictate apparently any terms he chose in his financial dealings with the Melicans. It seems incredible that the latter could be induced to pay interest at the rate of $50 a month for fourteen months upon a loan of $1,000, but he did so. Under all the circumstances the possession of these notes by appellant after the settlement is by no means satisfactory evidence that they were due and unpaid. The evidence as to payment is not perhaps conclusive, but on the other hand it is not doubtful that appellant did receive in that settlement property from which he realized much more than sufficed to pay all that , was honestly due him. It is true the chancellor held that he was estopped by the settlement made between appellant and Melican before the latter went into bankruptcy, from compelling appellant to refund the usurious interest paid him; and it is said that nevertheless the result of the decree is that appellant is in fact required to so refund. However this may be, we are not advised of any reason why the equitable power of the court should be limited by the alleged settlement referred to, and the decree in this respect is fully as favorable to appellant as the conceded facts warrant. Under the evidence we should not be justified in disturbing the finding of the chancellor upon the questions of fact.

' As to the valuation of the property taken by appellant under the alleged chattel mortgage it is difficult to determine from the evidence as shown in the abstract what the fair value of the property taken was. The inventory made by appellant’s agents or employes and the testimony of one of them fixes the value at $1,015.50. Evidence introduced in behalf of appellee placed the valuation at $1,500, and the, court found accordingly. We are not in position to say that such finding was erroneous, .having neither seen the witnesses nor heard their testimony.

It is urged that the allowance of interest was clearly erroneous. When appellant wrongfully seized and converted to his own use property of Melican’s, he became liable from that date to pay as damages the full value of the property taken. That value was ascertainable by reference to a recognized standard—the market-prices. When thus ascertained, it should carry interest, as upon a liquidated account. Harvey v. Hamilton, 155 Ill. 377-380.

Finding no reversible error the decree of the Circuit Court must be affirmed.

'Affirmed.