{ "id": 5624156, "name": "The People of the State of Illinois, Defendant in Error, v. Milton Feldstein, Plaintiff in Error", "name_abbreviation": "People v. Feldstein", "decision_date": "1933-12-11", "docket_number": "Gen. No. 36,935", "first_page": "47", "last_page": "51", "citations": [ { "type": "official", "cite": "273 Ill. App. 47" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "177 Ill. 244", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3154211 ], "opinion_index": 0, "case_paths": [ "/ill/177/0244-01" ] }, { "cite": "327 Ill. 305", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5191976 ], "opinion_index": 0, "case_paths": [ "/ill/327/0305-01" ] }, { "cite": "325 Ill. 99", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5181600 ], "opinion_index": 0, "case_paths": [ "/ill/325/0099-01" ] }, { "cite": "349 Ill. 235", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2602980 ], "opinion_index": 0, "case_paths": [ "/ill/349/0235-01" ] }, { "cite": "141 Ill. 290", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5458855 ], "opinion_index": 0, "case_paths": [ "/ill/141/0290-01" ] } ], "analysis": { "cardinality": 480, "char_count": 8022, "ocr_confidence": 0.53, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.75197685270454 }, "sha256": "d7d127b1f1386b70858edb4d0f7072ff4d66d66fb29cc88534670b555f1de71f", "simhash": "1:1baba44ea546786d", "word_count": 1398 }, "last_updated": "2023-07-14T20:59:31.552249+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Defendant in Error, v. Milton Feldstein, Plaintiff in Error." ], "opinions": [ { "text": "Mr. Justice McSurely\ndelivered the opinion of the court.\nDefendant, charged with larceny as bailee, was found guilty by a jury and sentenced to imprisonment for one year in the house of correction and fined $1; he seeks a reversal.\nThe case involves transactions between Stein & Ellbogen Company, dealers in jewelry and diamonds, and the defendant, in which certain diamonds were delivered to him, which the State alleges were delivered to him as bailee and which he feloniously stole. The statute says: \u201cIf any bailee of any . . . property shall convert the same to his own use, with intent to steal the same, ... he shall be deemed guilty of larceny.\u201d Ch. 38, \u00b6 388, Criminal Code (Cahill).\nBoth Stein & Ellbogen Company and the defendant are in business in Chicago. The defendant sets stones in rings and other jewelry; he also bought diamonds. Some five consignments of diamonds were made by Stein & Ellbogen to the defendant; the printed memo, in each consignment reads as follows:\n\u201cOn Consignment\nStein & Ellbogen Company\nImporters and Wholesalers of\nWatches and Jewelry\nCutters and Importers of Diamonds\n55 East Washington Street\nChicago 10/25 1929\nTo Leo Feldstein Sons\nCity.\nThe goods itemized, described and priced below are sent to you for examination only, to be held by you at your risk of loss or damage, however caused and are to be returned on demand, it being distinctly understood that the title to said goods remains vested in Stein & Ellbogen Company. Should you desire to purchase any of these goods, no sale or contract to sell shall be consummated until Stein & Ellbogen Company has approved of your selection and sent you a regular bill for the goods selected. The signing or acceptance of this memorandum is an acceptance of all the foregoing terms.\nTo Avoid Errors in Reporting on Memo. Goods Please Enclose List op Articles Kept\u201d\nThe above is a printed form. Following this, in the first consignment, is written: \u201c340 1 Brill 1.87 @ 425.00 per ct. 3% for cash\u201d .\nAlthough the meaning of the word \u201cBrill\u201d is questioned somewhat we will assume it means a diamond. The other consignments were upon the same printed form, followed by writing describing the diamonds consigned, with the price; in all of them except the first the terms named were \u201cNet Cash.\u201d\nStein & Ellbogen Company had for a number of years done business with Leo Feldstein Sons, defendant\u2019s firm, sending it diamonds to be set. Sometimes defendant bought stones from Stein & Ellbogen, which were paid for according to the terms stated.\nCharles Ellbogen, president of Stein & Ellbogen Company, testified for the State that the writing on the first consignment meant that the stone could be purchased for $620, and \u201c3% for cash\u201d meant that this discount would be allowed if the stone was paid for by the tenth of the following month; that sometimes they would give the customer an extra week or two to pay; that where the terms are \u201cNet Cash\u201d the bill is payable before the tenth of the month following the date of the purchase; the witness testified that defendant called at their office almost every day and that they had never had any trouble with him. Another witness testified to the same effect, and that \u201che (Feldstein) may pay the bill within thirty-five days and still get 3% off; if he takes longer he will have to pay the full amount\u201d; that the arrangement was that if the article was not disposed of or sold it should be returned, but if he retains it he must pay for it.\nThe defendant pawned the stones covered by the five consignments in evidence. Bornstein, to whom they were pawned, testified that he had known defendant for about 15 years and had done business with him; that there was nothing unusual about pawning the diamonds, as it is a common practice in Chicago for retail jewelers and wholesale jewelers, to pawn their diamonds for the purpose of paying bills. Charles Ellbogen testified he received several notes from defendant in payment of diamonds consigned to him, but could not tell whether the notes covered the diamonds mentioned in the consignments which are in evidence; he would not say that he did not get notes from defendant in payment for the diamonds described in the consignments.\nDefendant argues in this court that while certain portions of the printed matter in the memo, of consignment might indicate that the defendant received the goods as bailee, yet the writing giving the price of the articles and the terms of sale, with the evidence that these consignments were in the ordinary course of business in which, if the articles were not sold by the defendant, they were to be returned by him, the contract was not a bailment but a contract \u201con sale or return. \u2019 \u2019\nIn House v. Beak, 141 Ill. 290, a contract \u201con sale or return\u201d is defined as \u201can agreement by which goods are delivered by a wholesale dealer to a retail dealer to be paid for at a certain rate, if sold again by the latter; and if not sold to be returned.\u201d (Story on the Law of Sales, sec. 249.) The opinion further says that if the vendee returns the goods, the contract of sale is at an end; \u201cif he does not, the sale becomes absolute, and the price of the goods may be recovered in an action for goods sold and delivered\u201d; that the consignee may deal with the goods as his own, \u201cis under no obligation to give any account of his disposition of them, and is only liable to pay for them at a price fixed beforehand.\u201d In People v. Gualano, 349 Ill. 235, it was said that to constitute the offense of larceny as bailee the relationship of bailor and bailee must exist, and that when the identical thing delivered is to be restored in the same or altered form the contract is one of bailment, \u201cbut when there is no obligation to restore the specific article and the receiver is at liberty to return . . . the money value, he becomes a debtor to make such return and the title to the property by such transaction passes to him. \u201d See also, to the same effect, People v. Wildeman, 325 Ill. 99, and cases there cited.\nWe do not consider cases cited by the State as applicable to the present facts. In People_ v. Barnard, 327 Ill. 305, the defendant received a shipment of furs to be purchased at a price to be agreed upon between him and the consignor, and if they could not agree upon a price the defendant was bound to return the shipment intact. This he did not do, but substituted for the furs he received others of an inferior sort, which he sent to the consignor. In Bergman v. People, 177 Ill. 244, the jewelry was intrusted to the defendant for the purpose of exhibiting it to others; the representation that the defendant contemplated purchasing jewelry as a wedding present was false and fraudulent and part of a scheme to enable Bergman to secure possession of the jewelry that he might convert it to his own use.\nWe hold that the consignments of diamonds in question to Feldstein were not bailments but were contracts on sale or return. The fact that Feldstein pawned the diamonds, which seems to be customary in the jewelry trade, does not change the character of the transaction. Feldstein was bound to return the diamonds within a reasonable time, or if he did not do so then he became liable in an action in assumpsit.\nAlthough it was shown that the value of the diamonds consigned was over $2,000, yet the jury found the value of the goods to be $14 \u2014 evidently a compromise verdict.\nOther points are made, upon which it is unnecessary to comment. There being no bailment, defendant could not be found guilty of larceny as bailee.\nThe judgment of the criminal court is therefore reversed without remanding.\nReversed.\nMatohett, P. J., and O\u2019Cohhor, J., concur.", "type": "majority", "author": "Mr. Justice McSurely" } ], "attorneys": [ "Bernard J. Brown, for plaintiff in error.", "Thomas J. Courtney, State\u2019s Attorney, for defendant in error; Edward E. Wilson, J. Albert Woll and Henry E. Seyearth, Assistant State\u2019s Attorneys, of counsel." ], "corrections": "", "head_matter": "The People of the State of Illinois, Defendant in Error, v. Milton Feldstein, Plaintiff in Error.\nGen. No. 36,935.\nOpinion filed December 11, 1933.\nBernard J. Brown, for plaintiff in error.\nThomas J. Courtney, State\u2019s Attorney, for defendant in error; Edward E. Wilson, J. Albert Woll and Henry E. Seyearth, Assistant State\u2019s Attorneys, of counsel." }, "file_name": "0047-01", "first_page_order": 107, "last_page_order": 111 }