{
  "id": 3374862,
  "name": "Lamborn & Company, Inc., Appellee, v. John B. Livingston, Appellant",
  "name_abbreviation": "Lamborn & Co. v. Livingston",
  "decision_date": "1927-10-04",
  "docket_number": "Gen. No. 31,576",
  "first_page": "498",
  "last_page": "503",
  "citations": [
    {
      "type": "official",
      "cite": "245 Ill. App. 498"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 487,
    "char_count": 9293,
    "ocr_confidence": 0.551,
    "sha256": "6684314fa361069b84e871875599f5bf3b9b882b6c8ac9f885b6c22e3d4e20db",
    "simhash": "1:272fad8eb2deee8a",
    "word_count": 1553
  },
  "last_updated": "2023-07-14T20:59:36.655682+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Lamborn & Company, Inc., Appellee, v. John B. Livingston, Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Presiding Justice Barnes\ndelivered the opinion of the court.\nThis appeal is from a judgment entered on a verdict of guilty, and assessing plaintiff\u2019s damages at $5,792.14.\nThe declaration contains four counts, to which the plea of general issue was filed. To sustain the judgment plaintiff relied solely on the last count.\nThat count charges that defendant, a warehouseman, on or about May 21,1923, issued to Deree & Company his negotiable warehouse receipt No. A304 for 600 bags of fine granulated sugar, to wit, lot 3023, from Lehigh Valley Car No. 87778, and thereafter said receipt was indorsed by Deree & Company, and negotiated for value to plaintiff, a purchaser in good faith, but that defendant, on or about April 8, 1924, informed plaintiff that he did not have possession, custody or control of said sugar, and by reason of its non-existence and by force of the statute (section 20 of the Uniform Warehouse Receipts Act) the defendant became liable, etc.\nSaid section provides: \u201cA warehouseman shall be liable to the holder of a receipt for damages caused by the non-existence of the goods * * Cahill\u2019s St. ch. 114, H 255.\nThe applicability of the section depends on whether under the evidence it can be said the goods were nonexistent at the time of the issuance of the receipt.\nThe sugar was shipped in said Lehigh Valley car to Buffalo by the Franklin Sugar Refining Company to its own order, \u201cNotify Deree & Co.,\u201d and transferred at Buffalo to the Great Lakes Transit Company for water transportation to Chicago. On receiving notification, Deree & Company gave permission to the Transit Company to have the goods stored with defendant, and they were stored for the account of \u201cFranklin Sugar Refining Company, Notify Deree & Co.,\u201d defendant giving the Transit Company receipt for delivery.\nThe bill of lading had been originally forwarded to the Continental Commercial & National Bank of Chicago with draft attached, and by the bank presented to Deree & Company for acceptance and payment. Said company failed to pay the draft and accept the bill of lading. Both documents were then returned to the shipper, which returned the bill of lading to its exclusive broker, Syme-Eagle Brokerage Company, of Chicago, duly indorsed for delivery to the broker, with instructions to deliver the bill of lading to defendant and obtain receipts covering the goods. -But defendant had already issued warehouse receipts covering the goods in question, including the receipt described above, and sought to recover them when receipts were demanded by the Syme-Eagle Company. Seven of the nine so issued were recovered and Deree, president of Deree & Company, professed to have no record or recollection of where the other two were, one of them being the receipt in question, which he had indorsed and pledged as security with plaintiff about June 21, 1923.\nPrior to plaintiff\u2019s accepting the negotiable warehouse receipt as security as aforesaid, his employee telephoned to defendant\u2019s manager and was informed that the goods were there and that it would be necessary in order to get possession of them to present said receipt properly indorsed. On its representative calling at defendant\u2019s warehouse in May, 1924, to ascertain the condition of the sugar, plaintiff learned for the first time that the sugar had been delivered to SymeEagle Company, and defendant for the first time learned the whereabouts of said receipt, which previous inquiries had failed to disclose. Defendant then demanded the return of the receipt, which plaintiff refused to surrender, claiming that it was held as security for Deree & Company\u2019s indebtedness.\n\"Under this state of facts it must be conceded that the sugar, for which said receipt was issued, was at the time of its issuance in the physical possession of defendant. That defendant erroneously issued such receipts does not alter the fact of the physical existence of the goods they purported to cover. It follows there could be no right of action under section 20 of the Act in regard to warehouse receipts, which manifestly contemplates a state of facts where a warehouse receipt is issued for property that does not actually exist at the time of its issuance, a fraudulent act for which there would be civil liability to the holder under said section 20, and criminal liability under section 25 of the Act to Regulate Public Warehouses, etc. (Cahill\u2019s St. ch. 114, If 225.) But the property here was in actual existence and in store when the receipts were issued.\nThe evidence was conflicting as to whether plaintiff was any longer entitled to hold the receipt in question as security after discovery of the error in issuing it, as to which fact the finding of the jury was evidently in its favor. But even if plaintiff was so entitled we think it has misconceived its remedy as against defendant, and the judgment is reversed and the cause remanded.\nReversed and remanded.",
        "type": "majority",
        "author": "Mr. Presiding Justice Barnes"
      },
      {
        "text": "Q-ridley and Wells, JJ.,\nconcur.",
        "type": "concurrence",
        "author": "Q-ridley and Wells, JJ.,"
      },
      {
        "text": "On Petition for Rehearing.\nMr. Presiding Justice Barnes\ndelivered the opinion of the court.\nIn applying for a rehearing in this case plaintiff\u2019s counsel have changed their position. In their brief they said: \u201cThe plaintiff relies solely upon the last count in the declaration\u201d (which is the fourth count and is predicated on section 20 of the Uniform Warehouse Receipts Act, Cahill\u2019s St. ch. 114, if 255) and then proceed to discuss every theory of the defense from that point of view. Taking counsel at their word,, we considered the case solely from the point so relied on, regarding such statement as a clear waiver of the issues presented by the other counts. Notwithstanding that statement and their argument in conformity therewith, counsel in the petition for a iehearing attempt to. qualify the statement, and reargue the case, not only on the right of action under said count but in the alternative, in case our decision is correct, on a right of action under the third count which is predicated on section 11 of said Act, Cahill\u2019s St. ch. 114, If 246.\nIn their brief and argument on which the case was taken, plaintiff\u2019s first point is that \u201cthis is not an action in trover for conversion but is an action for non-existence of the goods,\u201d referring to said section 20. On page 12 of their argument counsel for plaintiff admit that under the facts there is no ground for the common-law action of conversion (on which the first two counts are based), saying that \u201cconversion of non-existing goods is an absurdity, \u2019 \u2019 and that the evidence \u201cshows conclusively that there never were any goods behind the warehouse receipt issued to Deree & Company, \u2019 \u2019 but that they were the property of the shipper\" under the bill of lading it held when said receipt was: issued.\nUnder the second point of their argument, that \u201cplaintiff is entitled to sue without a formal demand,\u201d counsel again reiterated the position taken under their first point.\nUnder their third point that \u201cdefendant is bound either to deliver the goods * * * or pay-damages for failure to do so,\u201d counsel take up appellant\u2019s references to sections 8, 9, 10 and 11, Cahill\u2019s St. ch. 114, fifi 243-246 (on the last of which the third count was predicated), saying section 8 \u201chas no application to the case of non-existence of the goods\u201d (p. 20); that plaintiff is in accord with defendant\u2019s contention as to section 9 which shows \u201cthere were no goods behind the warehouse receipts\u201d (p. 20); that counsel are \u201cin complete agreement with the. statement in defendant\u2019s brief\u201d that section 10 \u201ccannot be applied to the in. stant case\u201d (p. 21); and that \u201cthe provisions of-sec \u25a0 tion 11 of the act referred by its own terms to the delivery by. a warehouseman of \u2018all goods for which-he has issued a negotiable receipt, \u2019 and it is apparent from what has already been said above that the defendant had not issued a negotiable receipt for any g;oods, and that is the specific ground of complaint on behalf of the plaintiff \u201d (p. 22); and that plaintiff agrees with defendant that sections 12 and 19, Cahill\u2019s St. ch. 114, fif\u00ed 247, 254, do not apply to the case, and counsel repeat their argument that there were \u201cno goods behind the warehouse receipt.\u201d\nIt is thus clearly manifest that plaintiff abandoned every other claim to a right of action than that under the fourth count, to which alone appellant was invited and attempted to reply. And now we are asked to reopen the case on the theory that if there was no right of action under section 20 of said act there was under section 11. If such a practice were tolerated it would be well-nigh impossible for this court to dispose of the cases brought before it. Counsel should not, after a decision of a case on the points they expressly relied on and argued, be permitted to reargue the case on other points which have been abandoned or clearly waived.\nAccordingly the petition for a rehearing must be denied.\nRehearing denied.\nGridley and S canean, JJ., concur.",
        "type": "rehearing",
        "author": "Mr. Presiding Justice Barnes"
      }
    ],
    "attorneys": [
      "Scott, Bancroft, Martin & MacLeish, for appellant; Morris L. Johnston and Elbridge Bancroft Pierce, of counsel.",
      "Fisher, Boyden, Kales & Bell, for appellee; Thomas H. Fisher, of counsel."
    ],
    "corrections": "",
    "head_matter": "Lamborn & Company, Inc., Appellee, v. John B. Livingston, Appellant.\nGen. No. 31,576.\nOpinion filed October 4, 1927.\nRehearing denied and additional opinion filed October 17, 1927.\nScott, Bancroft, Martin & MacLeish, for appellant; Morris L. Johnston and Elbridge Bancroft Pierce, of counsel.\nFisher, Boyden, Kales & Bell, for appellee; Thomas H. Fisher, of counsel."
  },
  "file_name": "0498-01",
  "first_page_order": 550,
  "last_page_order": 555
}