{ "id": 2994501, "name": "Montgomery Ward & Company, Appellee, v. John Roeder et al., on appeal of J. Segal, Appellant", "name_abbreviation": "Montgomery Ward & Co. v. Roeder", "decision_date": "1920-03-09", "docket_number": "Gen. No. 25,074", "first_page": "89", "last_page": "95", "citations": [ { "type": "official", "cite": "217 Ill. App. 89" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "153 Ill. App. 239", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 878260 ], "opinion_index": 0, "case_paths": [ "/ill-app/153/0239-01" ] }, { "cite": "107 Ill. App. 181", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2571273 ], "opinion_index": 0, "case_paths": [ "/ill-app/107/0181-01" ] }, { "cite": "7 Ill. App. 395", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4831375 ], "opinion_index": 0, "case_paths": [ "/ill-app/7/0395-01" ] }, { "cite": "100 Mass. 198", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 2141879 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/mass/100/0198-01" ] }, { "cite": "138 Ill. App. 190", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2607561 ], "opinion_index": 0, "case_paths": [ "/ill-app/138/0190-01" ] }, { "cite": "94 Ill. App. 544", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5291520 ], "opinion_index": 0, "case_paths": [ "/ill-app/94/0544-01" ] }, { "cite": "176 Ill. 288", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3157678 ], "opinion_index": 0, "case_paths": [ "/ill/176/0288-01" ] }, { "cite": "201 Ill. App. 609", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2963592 ], "opinion_index": 0, "case_paths": [ "/ill-app/201/0609-01" ] }, { "cite": "77 Ill. 513", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 821775 ], "opinion_index": 0, "case_paths": [ "/ill/77/0513-01" ] }, { "cite": "195 Ill. App. 6", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2869893 ], "opinion_index": 0, "case_paths": [ "/ill-app/195/0006-01" ] } ], "analysis": { "cardinality": 704, "char_count": 12742, "ocr_confidence": 0.558, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08668227375418412 }, "sha256": "6fed3d50bdd15b9298aa518b16d97a48da22449e2fbf175c0bfdd93520b0e1db", "simhash": "1:8d85d195ba2f2b89", "word_count": 2260 }, "last_updated": "2023-07-14T20:45:52.647786+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Montgomery Ward & Company, Appellee, v. John Roeder et al., on appeal of J. Segal, Appellant." ], "opinions": [ { "text": "Mr. Presiding Justice Matchett\ndelivered the opinion of the court.\nThe plaintiff below brought suit in replevin to recover posession of one oak player piano, No. 23,624. The affidavit alleged that this piano player' was wrongfully taken and held by the defendants John Boeder and J. Segal. The piano player was taken from the possession of appellant Segal on the writ, and turned over to the plaintiff.\nBoeder was served but did not appear or defend. The case was tried by the court without a jury, and the court found the right of possession in the plaintiff, and damag-es for detention at the sum of one cent, for which amount judgment was entered. This appeal followed.\nOn March 25, 1918, the defendant J. Boeder gave to Montgomery Ward & Company the following order: ,\n\u201c5310 418\n\u201cMontgomery Ward & Co. Chicago Chicago Avenue Bridge Satisfaction guaranteed or your money back New York Chicago Kansas City Fort Worth Portland\nTry Our Piano 30 Days Before Sending Any Money\nPlease fill in all blank spaces on red lines\n(Date) 3, 25, 1918.\nMontgomery Ward & Co., Chicago.\n\u201cYou may ship me the piano described below, freight paid by you, without obligation on my part to keep it unless I am perfectly satisfied at the end of 30 days\u2019 trial.\n\u201cIf, at the end of 30 days\u2019 trial, I decide to buy the piano, I will send you the amount of the freight charges you paid to ship the piano to me, together with a first payment of $50.00, and I will pay you $10.00 on the 5 day of each month following until the piano is paid for, when you are to give me a receipt showing that it is my property.\n\u201cIf, at the end of 30 days\u2019 trial I decide that the piano is not satisfactory, I will notify you to send me shipping directions for returning the piano at your expense.\nWood desired\nNumber in Name of Walnut-Ma- Price of Catalogue Piano Selected hogany Oak Piano selected 267V6053 Windsor player Quartered Oak $469.00\nIf you are under legal age Sign\nPlease have your father or Here John Boeder G. E. some other responsible person 8519 Janssen Ave. guarantee the payments by signing under your signature.\nB. B. Co. Post Office Chicago Belmont Station\nI have lived here since B. F. D. No. State Ill. One year Box Street - and No. 3519\nMy occupation or Janssen Ave. business is Shipping Manufacturer Point County\nBeferenees Name Address Business or Occupation M. Bosenthal 170 W. South Water Commissioner\nBurbo King 6135 Vernon Ave Manufacturer\nNam:es Given as References Should Be of Banks or Business Houses.\n\u201cMontgomery Ward & Co.\u2019s business has been built on a policy of entire satisfaction to the customer or money back without argument, and refund of transportation charges both ways.\n\u2018 \u2018 Our written Piano Guarantee- sent each purchaser provides absolute protection against defects in material and workmanship for twenty-five years.\n(Stamped on face of order was this acceptance.)\nO. K. to ship\nTime Payment Division.\nReceived\nMar. 25, 1918\nT. P. DIV.\nWe Guarantee to Satisfy ob Return Money.\u201d\nOn April 10, 1918, thereafter, Montgomery Ward & Company directed that the piano player should be shipped to Boeder by the Chicago, Milwaukee & St. Paul -railroad, and to the address named in the order. It was received by him on April 20, 1918, and placed in a warehouse. The bill of lading was made out in his name. Later, he removed the instrument to a flat in which he resided at 3723 Waveland avenue. On the 12th of June thereafter, Boeder sold the instrument to appellant Jacob Segal for the sum of $100. $92 of this amount was paid by his check on that date, and $8.00 in cash upon Boeder\u2019s request that he give bim currency to that amount. Thereupon Boeder gave to Segal the following receipt:\n\u201cJune, 12, 1918.\n\u201cReceived of Jacob 'Sargal, 924 South Halsted street, One hundred dollars for a Windsor, #23,624. Paid in full.\n(signed) John Boeder.\u201d\nDefendant Segal at that time conducted a music store at 924 South Halsted street, under the name of \u201cJ. Segal Co., not inc.\u201d His business card further stated \"Music Store, Musical Instruments of every description, Phonographs and Pianos, Repairing of all Musical Instruments. 924 S. Halsted St. Music Furnished for all occasions, Chicago. \u2019 \u2019\nHe lived at 1608 South Sawyer avenue. His evidence, which is the only testimony in the record as to the circumstances of the sale, is to the effect that he knew Boeder through a society to which they both belonged; that Boeder called him up and asked if he wanted to buy a player piano; that his, Segal\u2019s wife, did not play the piano, and wanted a player piano. \u201cHe showed me a paper from the factory; said he was making hardware for pianos; that the government was after him for being a German spy; and was down and out, and wanted to sell the piano. Didn\u2019t understand much about the player piano; took my sister-in-law to test it; then he showed me a bill of sale from the factory. I took the number of the piano and went to the county recorder\u2019s office downstairs, and we looked over five or six books, and could not find that John Boeder liad any mortgage on a piano; examined the record and found no mortgage. Told him I would let him know; next day I went over and told him what the piano was worth to me; paid him $100 in cash and $10 for moving the piano.\u201d\nThe evidence shows that after signing the order of March 25, Boeder at no time communicated with Montgomery Ward & Company. He made no payment upon the contract. Neither before nor after the expiration of the 30 days\u2019 trial did he notify the company he had decided to buy the piano or that it was not satisfactory. He did not at any time request shipping directions for returning it. The evidence shows that as secondhand goods the piano was worth about $300.\nNo propositions of law were submitted to the trial court and we are not able to determine from the record on what theory the trial court decided the case. Overland Motor Co. v. Tennant, 195 Ill. App. 6.\nIt is the contention of the appellant that the contract in evidence indicates a conditional sale; that appellant 'Segal was an innocent purchaser for value without notice of plaintiff\u2019s right, and that plaintiff could, therefore, not maintain his suit without a previous demand. Ohio & M. Ry. Co. v. Noe, 77 Ill. 513; and could not, even if a demand had been made, sustain the suit. Lyon & Healy v. Walldren, 201 Ill. App. 609; Gilbert v. National Cash Register Co., 176 Ill. 288.\nWe think, under the facts in this record, the question of whether appellant should be held to be a purchaser without notice of plaintiff\u2019s rights is a- question of fact which, on the record, it must be presumed the court \u2019found against appellant. Appellant does not argue that the finding is against the weight of the evidence, but, on the contrary, contends that appellant was an innocent purchaser for value without notice, as a matter of law. We do not so view the record. If appellant was not such purchaser, then clearly the finding and judgment of the court were right, and no demand before bringing suit would be necessary. Schwamb Lumber Co. v. Schaar, 94 Ill. App. 544; Taylor v. Welsh, 138 Ill. App. 190.\nMoreover, we are inclined to. think that there is merit to the contention of appellee that by the terms of the written order of Boeder, he, Boeder, was a mere bailee of the piano player with an option to purchase upon the terms and conditions stated therein. If so, no title passed to Boeder because he never elected to exercise his option, and having no title himself, he would not be able to convey a title, even to a purchaser in good faith and for value. There are authorities which sustain this view. Hunt v. Wyman, 100 Mass. 198; Colton v. Wise, 7 Ill. App. 395; Bauman Loan Co. v. Hatowsky, 107 Ill. App. 181; Hatowski v. Cassriel, 153 Ill. App. 239. As was said in Hunt v. Wyman, supra:\n\u201cAn option to purchase if he liked is essentially different from an option to return a purchase if he should not like. In one ease the title will not pass until the option is determined; in the other, the property passes at once, subject to the right to rescind and return.\u201d\nIt is not easy to collect from the decisions any general rule which will distinguish a contract of sale from one of bailment. See Williston on Sales, sec. 338. We think the Uniform Sales Act, which was in force in Illinois at the time of this transaction, states the law which must be held applicable thereto. By section 18 thereof, Hurd\u2019s Rev. St. 1917, p. 2601 [Call. 1916 Stat. \u00b6 10021(21)], it is provided: \u201cWhere there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.\u201d And by the second part of rule No. 3 [Call. 1916 Stat. \u00b6 10021(22)] for ascertaining the intention of the parties \u201cunless a different intention appears,\u201d it is provided: \u201cWhen goods are delivered to the buyer on approval or on trial or on satisfaction or other similar terms, the property therein passes to the buyer (a) when he signifies his approval or acceptance to the seller or does any other act adopting the transaction: (b) if he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable' time. What is a reasonable time is a question of fact.\u201d Here no time was fixed for the return of the goods.\nIt would therefore appear that the ultimate question on this phase of the case was also one of fact, which has been decided adversely to appellant by the trial court. On neither point does the appellant argue that the finding of the court is against the manifest weight of the evidence. It follows that the judgment must be affirmed.\nAffirmed.\nMr. Justices Babetes and G-ridley concur.", "type": "majority", "author": "Mr. Presiding Justice Matchett" } ], "attorneys": [ "B. M. Shaffner, for appellant.", "Winston, Strawn & Shaw, for appellee; John C. Slade, W. H. Chadwick and Raymond Southworth, of counsel." ], "corrections": "", "head_matter": "Montgomery Ward & Company, Appellee, v. John Roeder et al., on appeal of J. Segal, Appellant.\nGen. No. 25,074.\n1. Appeal and ebbob, \u00a7 482 \u2014necessity for propositions of law. Where no propositions of law are submitted to the trial court, the Appellate Court may not ascertain from the record the theory on which the case was decided.\n2. Sales, \u00a7 218*\u2014when question for jury whether purchaser had notice of nature of seller's title. On replevin to recover possession of a piano sold to defendant by one who purchased of plaintiff under an agreement for the payment of monthly instalments, the question whether defendant purchased without notice of plaintiff\u2019s rights, held, under the evidence, to be a question of fact.\n3. Replevin, \u00a7 41*\u2014when demand unnecessary. Demand is not prerequisite to bringing an action of replevin against one claiming the property as a purchaser from the one to whom plaintiff had delivered the property with an option to purchase, where defendant was not an innocent purchaser for value without notice.\n4. Bailment, \u00a7 4*~\u2014iohen holder of goods under option to purchase is a mere bailee. Semble, that one who orders goods of another with the provision that he shall not be under obligation to keep them, unless he is perfectly satisfied at the end of 30 days\u2019 trial and that if he decides to buy at the end of 30 days\u2019 trial specified payments will be made, is a mere bailee of the goods with an option to purchase on the terms stated.\n5. Sales, \u00a7 181*\u2014effect of sale by holder of goods under option to purchase. One who receives goods from the owner as a mere bailee with an option to purchase upon certain terms and conditions stated in the written order given by him for the goods acquires no title where he never elects his option and consequently can convey no title to a third person, even though the latter be a purchaser for value without notice.\n6. Sales, \u00a7 180*\u2014application of Uniform Sales Act in determining transfer of title. Where one orders goods of another with a provision in such written order that he shall not be under obligation to keep them unless he is perfectly satisfied at the end of 30 days\u2019 trial, no time being fixed in the instrument for the return of the goods, such agreement is controlled by section 18 of the Uniform Sales Act [Call. 1916 Stat. ][ 10021(21)] and by the second part of the third rule for ascertaining the intent of the parties [Call. 1916 Stat. 1i 10021(22)].\nAppeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.\nAffirmed.\nOpinion filed March 9, 1920.\nB. M. Shaffner, for appellant.\nWinston, Strawn & Shaw, for appellee; John C. Slade, W. H. Chadwick and Raymond Southworth, of counsel.\nSee Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, saint-topic and section number." }, "file_name": "0089-01", "first_page_order": 115, "last_page_order": 121 }