Dows v. McCleary

Appellate Court of Illinois

Dows v. McCleary

14 Ill. App. 137, 1883 Ill. App. LEXIS 158

DecidedFebruary 12, 1884

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This text of 14 Ill. App. 137 (Dows v. McCleary) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dows v. McCleary, 14 Ill. App. 137, 1883 Ill. App. LEXIS 158 (Ill. Ct. App. 1884).

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Opinion

McAllister, P. J".

We are unable to perceive, from an examination of the record in this case, how the case imposes upon us the duty or necessity of giving a construction of the supposed contract purporting to be between Dows & Co. and Morse & Lilley, of date Dec. 17,1879, with a view of determining its effect as respects the question, in whom ivas the property in the corn alleged to have been converted by the defendants? There is no evidence in the record that Dows & Oo. ever executed that contract, in duplicate or other- . wise. From what the record fails to show, and what it does show, the court below would have been justified in finding the supposed contract void for want of mutuality; and we are to presume that the court did so find. That being so, there was no evidence to show any or what limitations were placed by Dows & Co. upon Morse & Lilley, in whose custody they left the corn, or the extent of their authority in respect thereto. They, it seems, were, and for a long time previously had been, engaged in the place where the corn was stored, iii the business of buying, shipping and selling corn. It seems to be a recognized rule of law that if the owner of goods puts them into the custody of another, whose common business it is to sell that kind, or that and other kinds of goods, and such owner places no limitation upon the authority of such custodian, he thereby confers upon such custodian an implied authority to sell them. Pickering v. Bust, 15 East, 38; approved in Saltus v. Everett, 20 Wend. 280.

The character of the business of Morse & Lilley, and the •circumstances in evidence (aside from such supposed contract, w’hich the court below was justified in holding void for want of mutuality) tended to support the finding below that Morse & Lilley were authorized, so far as the defendants were concerned, in shipping to the latter the corn in question, which they received from Morse & Lilley in the usual course of business, sold and returned to them the proceeds, in good faith, and without notice of any interest of the plaintiffs therein. The case is entirely distinguishable from Fawcett, Isham & Co. v. Osborn, Adams & Co., 32 Ill. 411. And we think the judgment below should be affirmed.

Affirmed.

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McAllister, P. J".

We are unable to perceive, from an examination of the record in this case, how the case imposes upon us the duty or necessity of giving a construction of the supposed contract purporting to be between Dows & Co. and Morse & Lilley, of date Dec. 17,1879, with a view of determining its effect as respects the question, in whom ivas the property in the corn alleged to have been converted by the defendants? There is no evidence in the record that Dows & Oo. ever executed that contract, in duplicate or other- . wise. From what the record fails to show, and what it does show, the court below would have been justified in finding the supposed contract void for want of mutuality; and we are to presume that the court did so find. That being so, there was no evidence to show any or what limitations were placed by Dows & Co. upon Morse & Lilley, in whose custody they left the corn, or the extent of their authority in respect thereto. They, it seems, were, and for a long time previously had been, engaged in the place where the corn was stored, iii the business of buying, shipping and selling corn. It seems to be a recognized rule of law that if the owner of goods puts them into the custody of another, whose common business it is to sell that kind, or that and other kinds of goods, and such owner places no limitation upon the authority of such custodian, he thereby confers upon such custodian an implied authority to sell them. Pickering v. Bust, 15 East, 38; approved in Saltus v. Everett, 20 Wend. 280.

The character of the business of Morse & Lilley, and the •circumstances in evidence (aside from such supposed contract, w’hich the court below was justified in holding void for want of mutuality) tended to support the finding below that Morse & Lilley were authorized, so far as the defendants were concerned, in shipping to the latter the corn in question, which they received from Morse & Lilley in the usual course of business, sold and returned to them the proceeds, in good faith, and without notice of any interest of the plaintiffs therein. The case is entirely distinguishable from Fawcett, Isham & Co. v. Osborn, Adams & Co., 32 Ill. 411. And we think the judgment below should be affirmed.

Affirmed.

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