Ellis v. Chicago Safe & Merchandise Co. , 172 Ill. App. 215 ( 1912 )

Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff’s statement of claim alleged a sale and agreement to deliver to him furniture valued at $65, and claimed damages for failure to deliver the same.

Defendant had delivered the furniture to one Malone on a written contract of sale to him; the latter had parted with his interest and given possession of the goods to one Marshall, who had mortgaged them and who, at the time of the trial, was nnder arrest, and his landlord was holding the property under a landlord’s lien. Five dollars were still due defendant on his contract of sale.

With knowledge of such circumstances, the parties to the case entered into an arrangement which plaintiff claims was a re-sale of the furniture to him on the payment of said balance of $5, and an agreement to transport it back to defendant’s store for $5 additional also paid defendant. Defendant admits tbe payments aforesaid, but claims that he merely assigned Malone’s contract to plaintiff and agreed to deliver tbe goods only on condition that be conld get possession of them without litigation. Tbe main fact in controversy was whether tbe agreement to deliver was unconditional. On tbe evidence received, tbe court found tbe defendant was liable only for tbe $5 advanced to him for dray-age, and we see no reason for disturbing such finding.

It is urged that tbe plaintiff should have been permitted to prove as damages what be bad paid for Marshall’s interest and for rent of a room in anticipation of receiving tbe furniture from defendant, and that tbe court should have allowed him to amend bis claim to include such items. Regardless of tbe propriety of tbe court’s ruling in refusing, leave to amend bis statement of claim, proof of such items was not admissible on tbe question of damages. Tbe court evidently accepted defendant’s version of tbe transaction, namely, that defendant parted with bis title, leaving tbe plaintiff in tbe position of Malone, or bis alleged assignee, Marshall, to assert such right as be bad to possession of tbe goods which defendant only conditionally agreed to regain. Under such a construction of tbe contract there is no liability on tbe part of tbe defendant except to return tbe money advanced for drayage.

Tbe judgment will be affirmed.

Affirmed.