{ "id": 5553174, "name": "C. C. McMahel, Appellee, v. Jacob T. Smith, Appellant", "name_abbreviation": "McMahel v. Smith", "decision_date": "1934-09-06", "docket_number": "", "first_page": "29", "last_page": "35", "citations": [ { "type": "official", "cite": "277 Ill. App. 29" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "159 Ill. 179", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3131756 ], "opinion_index": 0, "case_paths": [ "/ill/159/0179-01" ] }, { "cite": "60 Ill. 465", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8502030 ], "opinion_index": 0, "case_paths": [ "/ill/60/0465-01" ] }, { "cite": "309 Ill. 476", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5102625 ], "opinion_index": 0, "case_paths": [ "/ill/309/0476-01" ] }, { "cite": "316 Ill. 196", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5143852 ], "opinion_index": 0, "case_paths": [ "/ill/316/0196-01" ] }, { "cite": "126 Ill. 201", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5404226 ], "opinion_index": 0, "case_paths": [ "/ill/126/0201-01" ] }, { "cite": "259 Ill. App. 172", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3339884 ], "opinion_index": 0, "case_paths": [ "/ill-app/259/0172-01" ] }, { "cite": "264 Ill. 610", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 6044748 ], "opinion_index": 0, "case_paths": [ "/ill/264/0610-01" ] }, { "cite": "291 Ill. 472", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2420887 ], "opinion_index": 0, "case_paths": [ "/ill/291/0472-01" ] }, { "cite": "258 Ill. App. 53", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5607944 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app/258/0053-01" ] } ], "analysis": { "cardinality": 484, "char_count": 9282, "ocr_confidence": 0.533, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.16151713864399045 }, "sha256": "0f2668125988e9393731104e135860507107c39b458b9d70f6bcf71b056b21ce", "simhash": "1:ec0d712c3da49083", "word_count": 1642 }, "last_updated": "2023-07-14T16:35:45.826377+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "C. C. McMahel, Appellee, v. Jacob T. Smith, Appellant." ], "opinions": [ { "text": "Mr. Justice Murphy\ndelivered the opinion of the court.\nAppellee brought an action in debt in the circuit court of Wabash county against appellant to recover the statutory penalty of one-third the value of personal property alleged to have been sold by appellant under a chattel mortgage in which appellee was mortgagor and appellant mortgagee, the basis of the action being the alleged failure of appellant, as mortgagee, to comply with the provisions of section 2, Cahill\u2019s 1933 Statutes, ch. 95, \u00b6 28.\nThis case was before this court at a previous term and reversed and remanded on questions of pleading. 258 Ill. App. 53.\nThe case went to trial upon the second and third counts, referred to in the former opinion, and the general issue. At the close of all the evidence, on motion of appellee, the court directed the jury to return a verdict for one-third the value of the property as they found such value from the evidence. The verdict was for $1,333.33, judgment was entered on the verdict and this appeal followed.\nAppellant\u2019s grounds for reversal are that the court erred in directing a verdict for the reason that there was a controverted question of fact for the jury as to whether appellant\u2019s taking possession of the property and making a sale thereof was a foreclosure under the powers contained in the mortgage, and that certain statements made by appellee to appellant at the time of the surrender of the property to appellant constituted a waiver by appellee of all rights given him, as mortgagor, including the right to have notice and report as provided by said paragraph 28. Appellant admits that he did not give notice or make report in accordance with said section.\nThe property described in the mortgage consisted of equipment used in the operation of a bakery. The mortgage contained the following covenants, \u201csaid mortgagor to keep said property insured for benefit of mortgagee\u201d and provided that \u201cuntil default in the performance of said conditions said mortgagor may retain possession of said goods and chattels, but if such default be made, or said mortgagee, or assigns, with or without apparent cause, feel insecure then said mortgagee may without suit take possession of said goods and chattels, wherever found, and sell the same at public auction or private sale, retain the amount of said note and all expenses, and pay the surplus to said mortgagor. \u2019 \u2019\nAppellee breached the mortgage by his failure to keep the property insured. On January 25, 1929, appellant, accompanied by the sheriff, went to appellee\u2019s shop and appellant then told appellee that he had come to take possession. Appellant\u2019s testimony is that appellee then said to him, \u201cWhat\u2019s the matter with you that you are getting after that? \u2014 I don\u2019t understand,\u201d to which appellant replied, \u201cI can\u2019t help it. I mean what I am telling you. \u2019 \u2019 Nothing further was said, and by agreement they were to meet later that same evening. Appellant returned about 7 p. m. with a Mr. Beck. Appellee testifies that appellant then said, \u201cI have brought Mr. Beck in here to watch things tonight.\u201d Appellant\u2019s version of this conversation is as follows: \u201cHe (appellee) said, \u2018What do you mean by this anyhow?\u2019 I said, \u2018I mean just what I told you. I have to do this. I can\u2019t put up with this any longer.\u2019 He said, \u2018Well, if you hadn\u2019t been so easy on me, I might have paid you. I will just turn this over to you and you may do what you please with it.\u2019 He then turned around. Mr. Beck and I walked to back part. Mr. Beck stayed there and I went home.\u201d\nThe following.morning a Mr. Ballard came to the shop and demanded the keys. Appellee refused and told Ballard that Smith was the only one he would deliver the keys to. Ballard left and in a few minutes returned accompanied by appellant. Appellee\u2019s version of the conversation that then followed, is: \u201cAre you (appellant) taking over this equipment in complianee with the terms of the chattel mortgage ? He said, \u2018Yes.\u2019 I said, \u2018Well, I guess I will have to give you the key.\u2019 I shoved it over the counter to him and he shoved it to the other man.\u201d Appellant\u2019s testimony is, \u201c When I went up there the next day McMahel said to me, \u2018Did you sell this to Ballard?\u2019 I said, \u2018He will be in charge from now on,\u2019 so he turned the keys over to him and I walked out. He did not inquire of me if I had taken the property under the terms of the chattel mortgage. He said nothing to me about it.\u201d\nWe have quoted at length all the evidence as to what was said in all the conversations. In considering the error assigned it will be necessary to look at the evidence in its most favorable light to appellant and to grant him all reasonable inferences that can be drawn therefrom. Walldren Express & Van Co. v. Krug, 291 Ill. 472; American Art Works v. Chicago Picture Frame Works, 264 Ill. 610; Vail v. Graham, 259 Ill. App. 172.\nThere can be no recovery under said paragraph 28 unless there has been a sale under a power contained in the mortgage, and the burden of proving such fact rested upon appellee. McMahel v. Smith, 258 Ill. App. 53.\nThe first step necessary for appellant to take to foreclose his mortgage was to obtain possession, and the uncontradicted evidence is that he went to appellee\u2019s shop for that purpose. He was then exercising his rights under the mortgage. On cross-examination he said, \u201cThe only right I had to this property was the fact that I had a chattel mortgage on it. I went up there with the sheriff to take possession under my chattel mortgage.\u201d\nIt is uncontradicted that on the first visit of the afternoon appellant made a demand for possession of the property, and when he returned in the evening he brought with him Mr. Beck who was, as he says, to watch the property. The length of time Beck was there, or what he did in reference to assuming custody of the property, is not disclosed by the evidence. The evidence shows that on the following morning appellee was in possession and still retained the keys to the room where the property was located. When appellant, in the presence of Ballard, made demand for the keys he testifies that appellee asked him if the property had been sold to Ballard, and he replied, \u201cHe will be in charge from now on.\u201d By this answer appellant did not answer appellee\u2019s question as to whether there had been a sale to Ballard. Under the answer it was reasonable for appellee to assume that there had not been a sale, but merely a taking of possession pursuant to the negotiations of the preceding day.\nFrom these facts we' conclude that when appellee finally surrendered possession, the act which he said he would do the evening before, he did not have knowledge of the fact that appellant had then sold the property to Ballard, and without knowledge of such fact there could not be a waiver by appellee.\nThe evidence does not disclose that there was any conversation relative to the amount remaining due on the notes, or as to what credit appellee would receive from the property. The notes were not surrendered, but retained by appellant and destroyed by his attorney when the case was on trial at a previous hearing. A waiver is the relinquishment of a known right, and there must be both knowledge of the existence of the right, and an intention to relinquish it. Perin v. Parker, 126 Ill. 201; First Lutheran Church of Pontiac v. Rooks Creek Evangelical Lutheran Church, 316 Ill. 196. In Ferrero v. National Council of Knights & Ladies of Security, 309 Ill. 476, the court said: \u201cTo constitute a waiver it is essential that there is an existing right, benefit or advantage, knowledge, actual or constructive, of its existence, and an intention to relinquish it, and the burden of proof is upon the party claiming a waiver to prove that the, one charged to have waived the. right knew of the fact that entitled him to the right, and the facts upon which he relies for such waiver.\u201d We find that appellant has not proved, by the evidence in this case, that the appellee knew the facts of the sale to Ballard, and, not knowing such facts, his statements would not amount to a waiver.\nThe motion to direct a verdict for appellee did not, as to the matter of a waiver, raise any question for a jury. Whether certain facts had been proved, or not, must be ascertained by the jury, but whether or not they amount to a waiver, when proved, the court must decide. Winnesheik Ins. Co. v. Schueller, 60 Ill. 465. Appellee\u2019s motion for a directed verdict admitted, as true, the facts relied upon by appellant as constituting a waiver, and it therefore became a matter of law to be determined by the court. Dwelling House Ins. Co. v. Dowdall, 159 Ill. 179.\nThe court did not err in holding, as. a matter of law, that there was no waiver, and since appellant admits that the steps he took towards acquiring possession of the property were under and pursuant to his' rights under the mortgage it must be assumed that he rilade a private sale to Ballard, pursuant to the power given by the mortgage. There was no error in the granting of appellee\u2019s motion for a directed verdict, and the judgment of the circuit court is therefore affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Justice Murphy" } ], "attorneys": [ "M. J. White, for appellant.", "Frank Fornoef, for appellee." ], "corrections": "", "head_matter": "C. C. McMahel, Appellee, v. Jacob T. Smith, Appellant.\nOpinion filed September 6, 1934.\nM. J. White, for appellant.\nFrank Fornoef, for appellee." }, "file_name": "0029-01", "first_page_order": 57, "last_page_order": 63 }