Goldsmith v. Standard Automatic Machine Co.

236 Ill. App. 84, 1925 Ill. App. LEXIS 86

• Court: Appellate Court of Illinois
• Decided: January 26, 1925
• Docket: Gen. No. 29,813
• Status: Published

Opinions

Mr. Justice Matchett

delivered the opinion of the court.

The plaintiff below is the appellant in this court. The action was in replevin to recover the possession of an automatic filling machine, a capping machine and a conveyor, stated to be of the value of $8,000. The statement of claim was in the usual form.. It alleged that plaintiff was the owner of the machinery and that the same had been wrongfully taken and converted by the defendant. The affidavit of merits justified the alleged wrongful taking by setting up a chattel mortgage in and by which plaintiff had conveyed to the defendant the property in question to secure certain notes for the purchase price. Default in the payment of part of these notes was averred and it was also alleged that the defendant had taken the property while lawfully foreclosing the mortgage.

The trial was by the court without a jury and the court found the right of possession in the defendant, entered judgment on the finding and awarded a writ of retorno habendo for the property.

The plaintiff first argues that the trial court admitted incompetent evidence, but, as the trial was by the court without a jury, such error, even if conceded, will not reverse where there is sufficient proper evidence to justify the verdict. Kreiling v. Nortrup, 215 Ill. 195; Pratt v. Davis, 224 Ill. 300.

It is also urged that there was error by the trial court in refusing to receive competent evidence offered in behalf of the plaintiff. The record shows that the evidence concerning which the plaintiff complains was sought to be elicited upon the cross-examination of plaintiff’s witness and referred to a transaction concerning which the witness had not been questioned on his original examination, and the objection made that this was not proper cross-examination, was therefore, we think, properly sustained.

Certain propositions of law were presented to the court on plaintiff’s behalf, all based upon the theory that the contract for the sale of the property from defendant to plaintiff was illegal and void because defendant was a foreign corporation and was doing business in this State without complying with the statute requiring it to take out a license before transacting such business.

The defendant contends that the propositions were properly refused because the transaction in question was one in interstate commerce and under the more recent decisions of the Supreme Court of the United States we are inclined to agree with this contention. York Mfg. Co. v. Colley, 247 U. S. 21; DahnkeWalker Milling Co. v. Bondurant, 257 U. S. 282. This point, however, we do not deem it necessary to pass on, the undisputed fact in the case showing that, upon taking possession of the goods and chattels described in the mortgage, the contract between defendant and plaintiff ceased to be executory and became an executed one.

It is to be noticed that the defendant foreign corporation does not bring the suit but, on the contrary, the suit is by the plaintiff purchaser for the purpose of enforcing his alleged possessory rights with reference to this property. The question, therefore, as to whether the original contract or even the mortgage might have been avoided by him had a proceeding been brought upon either one of them, is not, we think, material.

That a chattel mortgage taken by a foreign corporation and foreclosed is an executed contract not subject to the provisions of a State statute which requires a license, has been held in several well-considered cases (see Hardison v. Plummer, 152 Ala. 619; Gamble v. Caldwell, 98 Ala. 577), and the same principle of law is approved in Capital Lumber Co. v. Mullinix, 208 Ala. 266, 94 So. 88.

We think the finding and judgment of the trial court was right upon clear and plain principles, and the judgment is affirmed.

Affirmed.

McSurely, P. J., concurs.