Nelson et al. v. McIntyre. evidence. Errors of the court only are complained of. In relation to the grain in the warehouse at Ottawa, the following points are made: It is claimed that the fourth instruction asked by appellants should have been given because there was some evidence by Ruger, the deputy sheriff, that Dorland, as the agent of appellants, had taken possession of the grain in the Ottawa warehouse for appellants. We have examined Ruger's evidence carefully, and we find nothing in it except that he had an impression of that kind from something he had heard, but had no knowledge on the subject. Dorland, in his evidence, makes no such claim, and there is really no such evidence in the record. It is not seriously contended by appellants in this Court that the grain actually in possession of Richardson & Son was not liable to be taken on execution against them, merely because of their relations with appellants under the agreement in writing of June 22d, 1875, though appellants may have deemed and called it their grain. And it seems to us that that is one of those questions which is too plain for discussion in this State. The fourth instruction is not based upon evidence of any other possession, or transfer of possession, than that which results from the written agreement itself; but if it were so claimed, we think it was properly refused, because there was really no evidence tending to show delivery by Richardson & Son, and actual possession by appellants. The foregoing answers the exceptions taken to defendant's first given instruction, also to the third. In the third the expression "while it remained in the possession of the Richardsons," would have been objectionable if there were a conflict of evidence as an assumption. The expression then should have been "if the jury believe from the evidence" in lieu of the word "while." The excluded evidence of Ravens, that checks drawn upon the Exchange Bank, were signed E. Richardson & Son, by Dorland, and that the latter told witness not to honor any unless thus signed, seems to us entirely immaterial. Nelson et al. v. McIntyre. Dorland was there for appellants, merely as an observer of the way business was done with the money furnished by appellants, because of the relations of debtor and creditor existing between the parties to the agreement, and for the protection of appellants in that relation, as a sort of monitor and watcher of the funds. We perceive no objection to the defendant below being permitted to prove that there was grain in both warehouses belonging to other parties. The question in replevin is whether the property in controversy belongs to the plaintiffs, and if it belongs to somebody else it does not to plaintiffs. It is not generally considered improper to ask the question, "who was the owner of the property?" though the answer may be a conclusion of fact. Pickering however, though the court sustained an objection by defendant to the question, stated fully all the facts which created such conclusions. Though the objection was sustained, the question was really fully answered, and therefore no harm was done. As far as the Ottawa grain is concerned, we perceive no erroneous ruling. As to the Streator grain, there was a conflict of evidence as to whether it was or was not actually delivered to appellants before the execution went into the hands of the officer. Pickering testifies positively that the grain in the warehouse at Streator was, before this, the property of appellants, and he states his means of knowledge thus: There had been introduced in evidence a number of warehouse receipts, given by Richardson & Son to appellants, for grain in store at Streator. In relation to those receipts and the grain therein mentioned, this witness said: I went to Streator, taking the receipts with me, and called upon William N. Richardson. I told Richardson I had been sent there to have what grain we held receipts for shipped. He said he was ready to ship any time he got cars. We figured up the amount of grain in the warehouse. I gave him the receipts. He said he would ship the grain right We went and got what cars we could and loaded two of them. The grain called for by the receipts and in the warehouse was about even. I surrendered the receipts to him. out. Nelson et al. v. McIntyre. myself after we estimated the quantity of grain in the warehouse. This was between the 20th and 24th of October. I think the 20th. I was there Thursday, Friday and Saturday. I telegraphed to Chicago for more cars. I think we got four more cars, and all were filled while I was there, with oats, corn and a little seed. The sheriff closed the warehouse before the grain was all out. The loaded cars had been billed and consigned to Murray Nelson & Co., and taken from the side track by the railroad company. The receipts he had called for more grain than there was in the warehouse. The result was, we figured up that he had so much grain on hand, then we figured up the receipts, and the receipts called for more grain than there was in the warehouse. The only examination we made was for the purpose of ascertaining whether there was enough grain in the warehouse to fill certain receipts which had not been filled. I went over the warehouse and looked at the grain. I took Mr. Richardson's book and figures for the amount of the grain. I did not estimate it. With the foregoing evidence in the case, the Court at the request of the defendant, gave the following instruction to the jury: "If the jury believe from the evidence, that the warehouse receipts in evidence were not held by the plaintiff at the time of the levy of the execution offered in evidence, but had been surrendered to the Richardsons prior to that time, then the plaintiffs are not entitled to any of the property replevied by reason of their having once held such receipts." This instruction, when applied to the evidence tending to show that the receipts were surrendered because of the delivery of the grain in the warehouse mentioned in them, is clearly erroneous. If this was the real reason for the surrender, then the appellants were most certainly entitled to the delivered grain for the very reason that they had once held the receipts, and that they had surrendered them for the grain thus delivered in exchange for them. It may be said that the jury were properly instructed on this subject in appellant's sixth instruction. We think this sixth instruction was right, but appellee's 8th comes in direct conflict with it. Which shall the jury take? Would they not, if there be such conflict between two given Nelson et al. v. McIntyre. instructions, consider the one last given as to be preferred because it expressed the latest intention of the law-giver, and as repealing or annulling the prior one. It may be that the result would have been the same if defendant had not asked, nor the court given the defendant's eighth, but we cannot so say. If the instruction was wrong, and might have done harm, we must reverse for the giving of it. Defendant's fourth instruction is a little marred in the abstracting, but it is correct in the record. As it is, in the record, we do not think it liable to appellant's criticism. Appellee's sixth instruction is inaccurate. It is as follows: "6. The jury are instructed, that, under the receipts offered in evidence, the plaintiffs cannot recover any other grain than that specified in and actually represented by the receipts at the time they were severally issued. If the jury believe, from the evidence, that the Richardsons were, at the time said receipts were issued, engaged in the business of buying and shipping grain, through an elevator, or warehouse, at Streator, and continued in such after said receipts were issued, and in the course of such business, the grain represented by said receipts at the time they were issued, was shipped from the elevator, and other grain taken in; and that the business was so carried on with the knowledge, and without objection on the part of the plaintiffs, then the plaintiffs are not, by virtue of said receipts, as against the defendant, entitled to recover any grain replevied in this case, which was taken into said Streator warehouse since the issuing of said receipts." When the relations are such as existed between appellants and Richardson & Son, we perceive no objection to the sale by the latter to the former of grain in store, by giving a warehouse receipt like those introduced in evidence as a quasi bill of sale, if the amount does not exceed that of their own grain in the warehouse, and if part of the receipts are surrendered and grain to the amount mentioned in them is shipped to appellants, and the receipts remaining represent the quantity not shipped, though not actually the last issued. We think the 1 612 68 595 O. O. & F. R. V. R. R. Co. v. Hall. delivery of the remaining grain in exchange for the remaining receipts, would pass the title to such remaining grain to appellants as against the execution, if actually delivered before the execution went into the hands of the officer. There may be errors in relation to the exclusion and admission of evidence, which we have not mentioned. For the errors aforesaid, we think another jury should pass upon the case, and therefore the judgment is reversed and the cause remanded. Reversed and remanded. THE OTTAWA, OSWEGO & FOX RIVER VALLEY R. R. Co. V. LEVI N. HALL. 1. CONDITIONAL SUBSCRIPTION-DELIVERY IN ESCROW-NON-COMPLIANCE WITH CONDITIONS.-Appellee subscribed to the capital stock of appellant, and delivered such subscription to a director of the company, in escrow, not to be delivered to the company except on condition that the county of Kendall failed to vote a subscription to the company. Held, in the absence of proof, that Kendall county had failed to vote a subscription to the company, there was no delivery to the company, and no recovery could be had against appellee. 2. COUNTY SUBSCRIPTION ILLEGAL-EFFECT UPON APPELLEE'S RIGHTS. -The fact that the subscription voted by Kendall county was afterwards declared void by the courts, does not constitute such a failure as was contemplated in the conditional delivery of appellee's agreement. The fact remains that such subscription was voted by the county, and this was sufficient to relieve appellee from liability under the conditions of his subscription. He did not contract upon the basis of the final validity of the county subscription. 3. DELIVERY TO A DIRECTOR NOT A DELIVERY TO THE COMPANY -If the person who received appellee's subscription did so upon condition that no delivery should be made to the corporation until the performance of certain conditions by the corporation, although he was a director therein, the corporation could acquire no right to the agreement until performance of the conditions under which it was delivered, no matter how it got possession thereof, unless there was a second delivery by consent of appellee. 4. DECLARATIONS RESPECTING CONTEMPORANEOUS SUBSCRIPTIONS. |