DeMoss v. Thomas

Mr. Presiding Justice Farmer delivered the opinion of the court. W. M. Wirt, under the name, of the Alpha nursery Co., owned and conducted a nursery at Alpha, Illinois, for the sale of fruit trees. On the 14th of July, 1902, a written contract was entered into between him and appellee, in which Wirt agreed to sell appellee nursery stock at prices quoted, and deliver the same, “ heeled ” in trenches at the nursery during the fall of 1902. Appellee was engaged in the business of soliciting orders and selling the stock to customers desiring it. The contract provided three ways for appellee to pay for the. stock, viz: first, cash;. second, bankable notes on thirty days’ time; or third, Wirt could collect the amount due him from appellee’s customers. Wirt was to retain control over the stock and its delivery to appellee’s customers to secure him. By the terms of the contract the stock was delivered to appellee at the nursery, but it was provided that in case he did not come there to attend himself to shipping it, Wirt should attend to it and charge the cost and expense to appellee, and collect this with the price of the stock. We deem it unnecessary to go into details of all the sales of stock made under the contract referred to, as only the proceeds of one sale are really involved in the case. This sale was made for delivery to customers in the vicinity of Clinton, Iowa. By the terms of the contract between the parties appellee was to report to Wirt every two weeks the amount and variety of stock sold. The stock sold in the neighborhood of Clinton, Iowa, was shipped by Wirt to the City national Bank of Clinton, with instructions to the bank to deliver it to the purchasers, collect and remit the proceeds. This the bank did. The amount remitted was $55.05, and it was remitted to the Alpha FTursery Co. At the time the remittance was made and received appellee had paid for all stock bought, and was not indebted to the nursery Co. The remittance was made May 13, 1903. On May 12th Wirt sold his nursery to appellant, who was his father-in-law. The sale included also the unsettled accounts due Wirt, and he wrote and signed on the first page of his ledger an assignment of all the accounts therein due him, to appellee, with authority to collect the same. When the stock was shipped to Clinton, Iowa, it was charged to the bank, and the ledger at the time of the purchase by appellant showed an account against the City National Bank. The remittance from the bank was received by appellant about the 14th or 15th of May, the bank credited with it, and the proceeds appropriated by appellant. Wirt was killed May 19th, and a few days thereafter appellee visited the nursery for the purpose of having a settlement. Mr. Sexton, who was Wirt’s bookkeeper, testified there was due appellee more than the amount of $55.05. Appellant refused to pay him, or to turn over to him the proceeds of the Clinton shipment, and this suit was brought before a justice of the peace against appellant, Alpha Nursery Co., and Blanche A. Wirt, who Avas the widoAV of W. M. Wirt. Appellant being a nonresident, an attachment was sued out as to him. A judgment was there rendered in favor of the plaintiff, and defendants appealed to the Circuit Court, Avhere, after Blanche A. Wirt had been dismissed from the case, as a party defendant, plaintiff had a verdict and judgment for §55.05, from which appellant prosecutes this appeal. It is first complained that the court erred in allowing appellee to amend and change the cause of action from a suit to recover for labor, to an action for money had and received; and it is said this was allowed “ in the face of the opening statement made by counsel for appellee,” that the suit was for labor. The abstract contains nothing more than an index purporting to show on what pages of the record the papers amended will be found. The papers themselves are not abstracted, nor any ruling of the court with reference thereto shown, nor is the opening statement of counsel for appellee, or any ruling of the court thereon, set out in the abstract. It is too well understood to require the citation of authority that we are not required to search the record for alleged errors that should be made to appear in the abstract. Especially can we not be expected to do so for the purpose of finding reasons to reverse a judgment, that on the merits appear to be just and right. Besides, the amendments complained of were authorized by statute and repeated decisions. If appellant had been taken by surprise he should have asked for a continuance. It is also contended that appellee was an innocent purchaser of the account in good faith, and that appellee having permitted Wirt to conduct the business between them in the manner he did, and charge the account against the bank on his books, was, in effect, trusting Wirt with apparent authority to sell a purchaser in good faith, and that appellee is therefore estopped to deny appellant’s title. It does not appear that appellee had ever seen Wirt’s books, or had any knowledge of his method of keeping them. He certainly, therefore, could never have consented to or acquiesced therein; nor was appellant influenced in making the purchase, so far as the record shows, by any act or conduct of appellee. The stock when delivered “ heeled ” in, became the property of appellee, subject to a lien in Wirt to secure the purchase price. When he had received all that was due him, he could not without appellee’s knowledge and acquiescence, by charging the account against some one else, sell it and confer title to the purchaser. Before appellee could be estopped to deny appellant’s title, it must be made to appear that some act or conduct of his had induced appellee to act to his prejudice. Richolson v. Moloney, 195 Ill. 575. The evidence shows clearly that the $55.05 did not belong to Wirt, but was the property of appellee, and having been appropriated by appellant, the verdict and judgment in favor of appellee in that sum were right and proper. We find no substantial error in the instructions, and the judgment is therefore affirmed. Affirmed.