Latham v. Nierman

Mr. Justice Taylor delivered the opinion of the court. On January 4, 1921, the plaintiff borrowed from the defendant, a pawnbroker, $100 on a diamond stud, and on January 11,1921, $100 on a diamond earring. The defendant, as a pawnbroker, delivered to the plaintiff two pawn tickets, which were as follows: “Watch and Jewelry Repairing MP $100.00 0049 Jan. 4,-21 85111 and interest Trans. Date Pawn Number ELI Eli A. Nierman 3020 South State Street Chicago. Calumet 5240 H Property D. Stud T No pledges redeemed before 48 Hrs. All Pledges kept 13 mos.” “Watch and Jewelry Repairing MP $100.00 0013 Jan. 11-21 85421 and interest Trans. Date Pawn Number ELI Eli A. Nierman 3020 South State Street Chicago. Calumet 5240 H Property Single Diamond Ear Screw T All Pledges kept 13 mos.” The plaintiff having attempted to redeem the pledges in February or March, 1922, according to his testimony, or in June or July, 1922, according to the defendant’s testimony, and having been informed by the defendant that the property in question either could not be found or was sold, brought suit in trover for conversion. The evidence showed the property was sold or disposed of sometime in June or on September 4, 1922, without any demand for payment of the sum due, and without" notice of the time and place of sale. The evidence showed the value of the property to have been about $600.00. There was a trial before the court, without a jury, and a judgment for the defendant. This appeal is therefrom. It is the claim of the plaintiff that none of the material provisions of the statute in issuing the pawn tickets was complied with by the defendant.; that there was no accurate account and description of the property pledged; that the value of the goods pledged was not stated; that the time of pledging, or the date of maturity of the loan, was not stated; that the rate of interest charged was not stated; that the name and residence of the pledgor were not stated. Further, it is contended that, as a consequence, the defendant had no right to dispose of the pledges without first having made a demand upon the plaintiff to pay the debt and redeem the property, and had no right to dispose of the property without giving the plaintiff notice of the time and place of sale. No claim was made at the trial, on the part of the defendant, that he had made any demand upon the plaintiff, or that he had given the plaintiff notice of the time and place of sale. The defendant’s claim is that in selling the pledges he “complied with the law in such cases made and provided.” The Pawnbrokers Act, par. 17, ch. 74, Cahill’s Ill. Rev. Stat. 1923, provided as follows: “Every pawnbroker shall, at the time of making any advancement or loan, deliver to the person pawning or pledging any property a memorandum or note signed by him containing an accurate account and description, in the English language, of all the goods, articles or other things pawned or pledged, the amount of money, value of thing loaned thereon, the time of pledging the same, the rate of interest to be paid on such loan and the name and residence of the person making such pawn or pledge.” The pawn tickets in question did not recite the value of the diamonds upon which the money was loaned nor the rate of interest to be paid nor the name and residence of the pledgor. They did, however, sufficiently describe the property and give the date of the pledging and the amount of money loaned. Each pawn ticket, also, contained the words, “All pledges kept 13 mos.” which, taken together with the date of each pawn ticket, practically informed the recipient of the maturity of the loan or time within which the pledge might be redeemed. It was held in Fergusson v. Norman, 5 Bing. N. C. 51, that contracts entered into between the pledgor and pawnbroker, in which certain requisites of the Pawnbrokers’ Act were not observed, were void. The requisites which were not complied with by the pawnbroker in that case consisted of the failure on the part of the pawnbrower to enter on his books, pursuant to the statute, the name of the person pawning them, the name of the street and number of the house in which said person lived, and whether lodger or house-keeper of the same, using the letters L. and. H. for that purpose, the name and abode of the owner of the goods, according to the information of the person pawning, and the failure to give the pledgor at the time of taking the pledge a pawn ticket containing entries provided for by the act. The evidence showed that in nine cases, there being altogether 142 pawns in which the question was involved, the pawnbroker had entirely omitted from his books the letters L. and H., and in 67 those letters were omitted from the pawn tickets. In that case, Bosanquet, J. said: “The sixth section of the act shows the express intention of the legislature, that, wherever any property is taken in pawn by a pawnbroker for the loan of money, a certain course shall be pursued; and unless that course be pursued, the contract is prohibited by law. Being prohibited by law, it is void, whether there be or be not any particular penalty annexed to it. If the transaction itself becomes illegal, this consequence necessarily follows * * * that no property can pass to the pawnbroker in the thing pledged. If no property can pass in the pledge, then the property remains in the pawner, and he will be entitled to recover.” Levine, in the Law of Pawnbroking, section 56, refers to the harshness of the above provision, but does not question its authority. Inasmuch as section 4 [Cahill’s Ill. St. ch. 74, ¶ 17] supra, is mandatory to the effect that the receipt or pawn ticket which the pawnbroker issues shall contain a statement of the value of the thing loaned upon, the rate of interest to be paid, and the name and residence of the person making the pawn or pledge, and as neither of the pawn tickets in question contained those requirements, we are of the opinion that the contract, which the defendant undertook to make, was void, and that no property in the articles pledged passed to the defendant; and, therefore, as no property passed to the defendant, the title remained in the plaintiff, and he was entitled to recover herein. It is urged that as a jury was waived and the plaintiff did not submit any proposition of law to the trial judge, no question of law that may be considered here, is preserved. That contention is untenable. Rothwell v. Taylor, 303 Ill. 226; Pittsburgh, C., C. & St. L. Ry. v. Chicago City R. Co., 300 Ill. 162. The judgment, therefore, will be reversed and the cause remanded. Beversed and remanded. O’Connor, J. and Thomson, J. concur.