Brief for the Appellees. Opinion of the Court.

ascertain what would be the price of the whole at a rate agreed upon between the parties, title will pass. Crofoot v. Bennett, 2 Comst. 258; Groat v. Gile, 51 N. Y. 431; Bradley v. Wheeler, 44 id. 495.

The elevator company, acting in good faith, had delivered the grain to the purchaser, who had the indicia of ownership, and though appellees might have retaken the grain from Patterson, they could not prejudice the rights of appellant. Railway Co. v. Kerr, 49 Ill. 458; Young v. Bradley, 68 id. 553; Railway Co. v. Phillips, 60 id. 190; Van Duzor v. Allen, 90 id. 499.

Messrs. PUTERBAUGH & PUTERBAUGH, for the appellees:

The sale being for cash, the contract was not completed until the money was paid; and an attempted payment by a check, which is dishonored, is no payment, and if it is given for grain sold for cash, and delivered on such check, the grain may at once be reclaimed by the seller. Canadian Bank v. McCrea, 106 Ill. 281; King v. Strong, 35 id. 9; Matthews v. Cowan, id. 341.

The delivery of the sampler's tickets to Patterson did not complete the sale, or the delivery of the property; nor did they vest the title in him until there was an actual delivery.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

On the trial of this case defendant submitted numerous propositions to be held as law applicable to the case, most of which were refused, and on that decision of the court the questions of law discussed arise. In order to determine whether the rulings of the court on the propositions submitted were erroneous or not, it will be necessary to ascertain the principal facts, and in doing so it will be understood that all the facts the evidence tends to establish, were found, by the trial and Appellate courts, in favor of plaintiffs.

Opinion of the Court.

It appears that defendant is a warehouseman, and has an elevator on its line of railroad, situated in the city of Peoria, and known as "Elevator A." On the 26th day of October, 1883, plaintiffs, who were grain dealers at Peoria, received car No. 12,977, consigned to them, containing oats, and on the next day they received car No. 2397, also containing oats. It is proven it was the usual custom, and one most generally observed by dealers on the board of trade in Peoria, when grain is consigned to a dealer, and the cars stand on the track, to cause it to be sampled by a person appointed by the board of trade for that purpose. The sampler gives a ticket stating the kind and grade of the grain inspected, and the consignees named, and posts one of these tickets in the car, and gives the other to the consignee with a sample of the grain. That was done in this case. There is evidence tending to show it was the custom among dealers on the board of trade, (as plaintiffs were,) when a sale is made on the board, for the seller to mark on these tickets the name of the person to whom the grain may be sold, and the price at which it is sold, and give the same to the purchaser, with an order, either verbal or written, to deliver the grain sold at such place as the buyer may designate. In this case the grain in controversy was sold by plaintiffs on the board of trade to a fellow member of that board, by the name of Patterson. The inspection tickets were delivered to Patterson at the time plaintiffs sold him the oats. On the tickets plaintiffs wrote the price in figures at which the oats were sold, and marked thereon the letter "A," which indicated the elevator at which Patterson wished to have the oats delivered or sent. The oats were sent to defendant's elevator by directions of plaintiffs, and were there unloaded. As respects these facts there seems to be no disagreement between the parties. The oats were sold to Patterson, and his check taken for the amount to be paid. On presentation to the bank, on the next

Opinion of the Court.

morning after it was drawn, the check was not paid, as the drawer had no money in the bank. In the meantime the oats had been shipped away, by the order and on account of Patterson, by defendant, under the directions of Patterson, and the question presented is, whether defendant had any rightful authority to ship the oats on the order of Patterson. Plaintiffs admit they directed the railroad company to deliver the oats at the elevator of defendant, but they deny most positively they ever gave defendant any authority, either verbal or written, to deliver the oats, or any part of them, to Patterson. The only proof made by defendant, as respects any order from plaintiffs to deliver the oats to Patterson, was the presentation of the inspection tickets by Patterson, with the price marked thereon, and the letter "A," which indicated the oats were to be delivered at defendant's elevator for the consignee; but the tickets, although in the hands of Patterson, contain no order to defendant to deliver the oats to him. The tickets were delivered to Patterson, as was the usual custom on the board of trade, as evidence of the price at which the grain was sold to him, and nothing more. It was to be a cash sale, and plaintiffs were under no obligation to direct defendant to deliver the oats to Patterson until the same were paid for. The giving of a check is no actual payment unless it is afterwards paid. In this case the check given by Patterson, as has been seen, was not paid, and on learning that fact, plaintiffs immediately demanded the oats of defendant, and which they did not and could not deliver, for the reason they had before that time shipped the oats on the order of Patterson. It was a controverted question of fact, at the trial, whether defendant had any authority, verbal or written, from plaintiffs, to deliver the oats to Patterson, and as it must have been found against defendant in the lower court, which had the exclusive authority by law to determine such questions, it is not open for investigation in this court. On the hypothesis defendant had no prior authority from plaintiffs to deliver

Opinion of the Court.

the grain to Patterson, the law is, it is responsible for it to plaintiffs.

The court, at the instance of defendant, held the law to be, "that if Buckley & Co. clothed Patterson with evidence of the ownership of the grain in controversy, or held him out as the owner of it, or allowed him to appear as the owner of the grain, with full power of disposition, and the elevator company was innocently led into dealing with him on the strength of his apparent ownership or authority, it will be protected in so doing, and Buckley & Co. can not now recover of said elevator company the value of said grain." Evidently the court found the facts did not bring the case within the operation of the principle embodied in this proposition, which states the law quite as favorably for defendant as it could ask to have it expressed. The propositions refused contain little more than the one held to be law, although expressed in somewhat different language. In view of the fact the court must have found defendant had no sufficient authority to deliver the grain it had received as the property of plaintiffs, to Patterson, there was certainly no error in law in refusing to hold as the court was asked to do in the several other propositions submitted. Unless defendant had permission from plaintiffs, expressed in some form, either verbal or written, or implied by their acts, or were estopped by some act or acts done to deny such permission was given, the shipping of the grain by the direc tion of Patterson, and on his account, was clearly wrongful, and the law would require the warehouseman to account for it to the consignee for whom it received it in the first instance. The slips delivered to plaintiffs were not warehouse receipts, in the sense those terms are used in the statute. No warehouse receipts were issued when the grain was received. As the grain was received for plaintiffs, common prudence would have required defendant to obtain specific directions to that effect from the storers before shipping the grain on the order of Patterson.

This it failed or neglected to do, and the loss

Syllabus. Brief for the Appellant.

must fall upon the warehouseman. Unless such precautions are observed, it is obvious there would be no safety for the storers of such commodities.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

1.

PROBATE OF WILL within what time allowed. There is no statute or law in this State limiting the time of probating a will to any given number of years. In this case, a will was admitted to probate thirteen years after the death of the testator, and letters of administration which had been previously issued on his estate were revoked.

2. REVOCATION of letters of administration on finding a will-as to acts prior to the revocation. Where a will of a deceased person is found and probated after the grant of letters of administration on his estate, such letters will be revoked; but all rights acquired under the letters will be protected.

APPEAL from the Appellate Court for the Fourth District; -heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. AMOS WATTS, Judge, presiding.

Mr. W. C. KUEFFNER, and Mr. J. M. DILL, for the appellant:

The lapse of seven years after the death of a decedent constitutes a bar to granting letters of administration, but which bar may be removed by showing circumstances which prevented an earlier application for them. Fitzgerald v. Clancy, 49 Ill. 465.

With regard to the time within which the lien of a creditor against the lands of a deceased, for the payment of the latter's debts, must be enforced, this court has repeatedly decided

114 343 168 497