D. P. Erwin & Co. v. Holloway

69 Ill. App. 458, 1896 Ill. App. LEXIS 394

• Court: Appellate Court of Illinois
• Decided: February 25, 1897
• Status: Published

Opinion

Mr. Justice Boggs

delivered the opinion of” the Court.

It is undeniable the representations made by the appellee as to the amount of the sales made by him prior to his engagement with the appellant company, and as to the reasons or causes which operated to sever his relations with Klemm, had great weight to induce the appellant company to take appellee into their service, and this whether the agreement entitled appellee to a fixed salary or compensation by way of commissions. A master may discharge a servant for false representations as to his capacity.

It was important, therefore, that the appellant company should have been permitted to develop the whole truth upon both of these points, and that instructions to the jury should have been accurate and comprehensive in respect to both of them.

But the court refused to permit the appellant company to show by Klemm the facts as to the severance of appellee’s relations with him, and restricted the testimony of the witness to the statement that “ they parted on a mutual understanding, and because both thought it best they should part.”

The conversation between Klemm and the appellee, not the conclusion of the witness thereon, should have been admitted to the jury.

In addition, the instruction given the jury in behalf of the appellee, which is set out in full in the statement, is so framed as to practically exclude from consideration the question whether the contract was induced by the misrepresentations of the appellee as to his capacity as a salesman and as to the reasons he did not retain his former position as a salesman for Klemm.

It was readily susceptible of the interpretation that if a contract was entered into, the appellee was entitled to recover, unless causes arising afterward warranted his discharge.

Instructions given on the part of the appellants had some tendency to remove this objection, but, all considered together, there yet remained room for misapprehension.

Moreover, we strongly incline to the view, a finding the compensation agreed upon was by way of commissions would have been more in harmony with the weight of the evidence and the justice of the matter.

Upon the -whole record, we think the judgment should be reversed and the cause remanded for another hearing.