Powell v. McCord

12 N.E. 262, 121 Ill. 330

• Court: Illinois Supreme Court
• Decided: June 17, 1887
• Status: Published

Opinion

Mr. Justice Scholeield

delivered the opinion of the Court:

Assumpsit was brought by defendant in error, against plaintiff in error, upon four promissory notes executed by plaintiff in error, amounting, in the aggregate, to §3500, two of them payable to the order of S. A. Downer, and the other two to the order of J. C. McCord, and all endorsed to defendant in ■error. Plaintiff in error pleaded the general issue, and several special pleas, alleging, in substance, that the consideration for which the notes were given was wholly illegal, in that it was the settlement of losses under contracts for the purchase and sale of wheat and com, upon the board of trade in Chicago, for future delivery, and that it was, at the same time, expressly agreed between them that they should neither receive nor deliver any article purchased or sold, but should simply adjust such contracts on the differences, or profits or losses, etc. Eeplications were filed tendering issues upon the pleas, which were joined. Upon the trial, the jury returned a verdict for the defendant in error, and the court, after overruling a motion by plaintiff in error for a new trial, gave judgment upon this verdict. That judgment was, on error to the Appellate Court for the First District, affirmed, and the-present writ of error brings the last named judgment before-us for review.

It is agreed by the parties in their respective statements, that in 1881 John C. McCord was doing business in Chicago-in the grain and provision commission business, on the board of trade, in the name of McCord & Co. In the fall of 1881, one Fred Gould had an office at "Valparaiso, Indiana, and there-received orders for the purchase of grain, provisions, etc., on the board of trade, in Chicago, which he telegraphed toMcCord & Co. at Chicago, who made the requisite purchases- or sales on account of the persons for whom the orders were-sent. The parties, however, do not agree what relation existed, during that time, between McCord & Co. and Gould,, plaintiff in error affirming, and defendant in error denying, that it was that of principal and agent, and there was some evidence tending to sustain each contention. Plaintiff in. error testified that it was agreed between him and McCord that their deals would not be in “cash grain,” by which was-meant" they would not deal in grain to be actually delivered by the seller to the buyer, and paid for by the buyer, but-would only deal in future options, settling on the differences-between the prices of purchase and the prices of the com modifies on the board of trade when the transactions were-closed. McCord testified, denying that this was the agreement. Plaintiff in error sent orders to McCord, through Gould, directing the purchase and sale of corn and wheat,, etc., and in October, 1881, on a settlement then had between McCord and plaintiff in error, the former claimed that the-latter owed him, on account (of balances and commissions in these transactions, $7101.83. McCord threw off all above-$7000, and plaintiff in error then gave him, on account thereof, two drafts, one for $2000, and the other for $5000, but McCord being unable to collect these, subsequently compromised with plaintiff in error by taking $1000 in money, and three promissory notes, aggregating $4000. One of those notes was discounted by S. A. Downer, and the two notes now in suit, payable to him, were given in lieu of it, and the other two notes now in suit are the remaining two thus given toMcCord. Plaintiff in error denies that any grain was, in fact, ever bought by McCord to be delivered to plaintiff in error, and avers that this balance simply represents differences in-market values between the dates of the orders and the dates of “closing out the deals.” McCord testified that the grain was, in fact, bought, and was represented by warehouse receipts, which he was ready to deliver, as directed by plaintiff in error.

The finding of the Appellate Court settles every question of fact against plaintiff in error, and this includes all questions depending upon the inferences or deductions to be drawn from the evidentiary facts. (Sun Mutual Ins. Co. v. Saginaw Barrel Co. 114 Ill. 99; Illinois Central Railroad Co. v. Haskins, 115 id. 300; Wrought Iron Bridge Co. v. Commissioners of Highways, 101 id. 518; Edgerton v. Weaver, 105 id. 45.) And on this ground, we are relieved from inquiring whether the evidence proves that defendant in error has paid out money for plaintiff in error, or contracted to pay it, as questioned by plaintiff in error. We will, however, observe, because of contentions here urged, and in order that future misapprehension may be avoided, although, in the view we take, not necessary to the present decision, that the burden of the defence is here on the plaintiff in error, and that evidence offered by the defendant in error to prove a specified fact, and ruled out on the objection of the plaintiff in error, can not be relied on by plaintiff in error as proof or the admission of anything.

Plaintiff in error objects that the trial court erred in admitting evidence, against his objection, that he was, in his business of manufacturing, using convict labor. The record recites that the following occurred, • in this respect, in the cross-examination of plaintiff in error:

Q. “You are manufacturing, where ?

A. “Michigan City.

Q. “You have the convicts of Michigan at work for you ?

A. “I have some of them.

Q. “About two hundred and fifty?

A. “No, sir.

Q. “How many ?

A. “I don’t know what the number is, now.

Q. “Guess at it, then.

A. “From one hundred and seventy-five to two hundred.

Mr. Boyesen—“I save the point on each of these questions. Bach one is overruled, and exception.

Mr. Bisbee—“You, then, you say that the point in doing this trading up here was to make some money?—that was your object?

A. “It was.”

This is all that the record shows. It nowhere appears that the court ruled on these questions, or that they were called to the attention of the court.

The questions were highly improper; they had no relevancy to any question before the court; their answers had no tendency to contradict or impeach the" witness, and their only purpose was to appeal to the prejudices of the jury, and thereby affect, improperly, the action of The jury as against plaintiff in error. Had the attention of the court been called to these questions and the objections to them, the objections should have been promptly sustained, and the jury informed that the questions were irrelevant. But the- court was entitled to an opportunity to pass upon them. It is not admissible that counsel can lie by and knowingly permit error to get into the record, without bringing it to the attention of the court, and then afterwards assign it for error.

Counsel say that the record is not accurately made up, in this respect,—that he, in fact, objected at the time, and the court overruled his objection. If this be so, then he should, in the trial court, have corrected the record. We can only-know what the record discloses. A recital in the record that the counsel assigning error said, at the time of the giving of ■obnoxious evidence by the witness, that the court overruled his objection,—there being nothing therein showing that the court heard and assented to his remark,—is not the equivalent of a recital that the court overruled his objection.

Objection is also made to the irrelevancy of the testimony of TenBroek. His evidence was to the effect that he had made an arrangement for McCord with a bank, to overdraw his account, until he could obtain warehouse receipts of grain to deposit, in order to meet his purchases. Concede that it was irrelevant, still we are unable to perceive how it qould have seriously prejudiced plaintiff in error. In effect, the testimony only tended to establish what, in the absence of proof, was the legal presumption, namely, that McCord was able to perform his contracts.

Objection is also urged to Hill’s testimony, but the record fails to show that any objection was taken to this testimony upon the trial.

The court, at the instance of the defendant in error, instructed the jury as follows:

“The court instructs the jury, that this is an action brought by Joseph T. McCord, the plaintiff, against the defendant, Powell, to recover the amount due upon the notes offered in ■evidence; and if the jury believe, from the evidence, that the defendant, Powell, employed said John T. McCord to purchase and sell grain on the board of trade in the city of Chicago, not to enter into gambling contracts or speculate in differ■ences in the price of grain, and that said John T. McCord, as such commission merchant, did actually, and in good faith, buy and sell such grain in the open market upon the Chicago board of trade, and at the market price, upon the orders of the defendant, and that by reason thereof said John T. McCord was, by the rules and regulations governing said board of trade at that time, obliged to pay and did pay out money or incur liability by reason of such undertaking, and did earn a commission for doing such business, and that the commission charged was reasonable, and that such trading was not illegal or in violation of any statute of this State, and such losses and commissions have not been paid, settled or adjusted, then the plaintiff is entitled to recover of the defendant in this suit the face of said notes, together with interest thereon, according to-the terms of said notes. And the court further instructs you, ■that in determining the question of whether or not the business between the said John T. McCord and said defendant was gambling, you will be governed by the following instruction:

“The jury are further instructed, that with reference to the defence of gambling, it makes no difference, in law, what the-secret intention of the defendant, Powell, was with relation to-settling his purchases and sales by the payment of the differences before the maturity of the contract, unless that intention was communicated to the said John F. McCord or his agent; and if you believe, from the evidence, that neither said John F. McCord nor his agent had knowledge or information of the intentions of the defendant in relation to the settlement, then such defence will not avail the defendant;. and if you so find, from the evidence, and if you further find, from the evidence, in all other respects, the orders were given and faithfully executed, and the losses paid out by said John. T. McCord, and incurred by him, and included in said notes, as claimed by the plaintiff, then your verdict should be for the-plaintiff, for the amount of said notes, with interest' theron, according to the terms of said notes.”

• It is objected by plaintiff in error that there is error here, because, first, the rules of the board of trade were not in evidence; second, the instruction tended to mislead the jury, in that it told them, that whatever the rules of the board of trade might be, if McCord paid out money or incurred liability under those rules, he could recover the face of the notes-sued on; third, that there is no evidence that McCord paid out any money whatever; fourth, that the second instruction is defective and misleading, in that it leaves out of consideration what McCord’s intentions were with regard to the transactions. In our opinion, neither of these objections is tenable.

First—Suppose that the words, “by the rules and regulations governing said board of trade, ” be omitted, will the sense be impaired ? We think not in the slightest. The reading will then be, “and if the jury believe, from the evidence, that the defendant, Powell, employed said John T. McCord to-purchase and sell grain on the board of trade in the city of Chicago, not to enter into gambling contracts or speculate in differences in the price of grain, and that said John T. McCord, as such commission merchant, did actually and in good faith buy and sell such grain in the open market upon the Chicago board of trade, and at the market price, upon the orders of the defendant, and that by reason thereof said John T. McCord was * * * obliged to and did pay out money or incur liability by reason of such undertaking, and did earn a commission for doing such business, ” etc. Manifestly, the reason why he was obliged to pay out money, under these circumstances, was of no consequence. It is sufficient that he did so, and that it was within the purview of his contract. Clearly, if plaintiff in error employed defendant in error to-buy and sell grain for him, and defendant in error, in complying with that contract, paid out money or incurred liability .for plaintiff in error, he is entitled to be reimbursed the amount, whether, under the circumstances, there was a rule of the board of trade requiring the payment or not. The requirement of the board of trade that he should pay the money, neither detracts from nor adds to the legal liability resulting from such a compliance with such a contract.

Second—The instruction does not assume that any money may have been paid out under the rules of the board of trade, except under the facts recited, and so it is impossible that an

improper state of case for the payment of money can be within .reasonable contemplation.

Third—There is evidence tending to show that McCord paid, out money, on these transactions, for plaintiff in error,—how much, is not important, since its weight was for the jury. Moreover, the evidence is undisputed, that McCord, in complying with the orders of plaintiff in error, incurred individual liability for the value of the grain he purchased, and that liability is a sufficient consideration for these promissory notes. (1 Daniell on Negotiable Instruments, secs. 183-185.) There is no question, here, as' in Brand et al. v. Henderson et al. 107 Ill. 141, whether an agent can recover, in an action of assumpsit, from his principal, on account of purchases made for his principal, for which the agent is liable to pay but has not paid,—the question is, only, whether the fact that the agent has incurred liability to pay, is a good consideration for the promise of the principal to pay the agent the amount for which he has thus incurred liability.

Fourth—What is called by counsel “the second instruction,” is, in truth, hut an additional paragraph, and must be construed in connection with what precedes, which is, “that John T. McCord did actually and in good faith buy and sell in the open market, ” and that such buying and selling “was not illegal or in violation of any statute. ” This paragraph is directed to the evidence of plaintiff in error with reference to his intention in making the contract, only.

The phraseology of the instruction is not so concise and perspicuous as we could desire, yet we do not think it could have misled the jury, and especially so when read, as it was, in connection with the instructions given on behalf of the plaintiff in error, immediately following it, in which the law, on the construction of the evidence contended for by plaintiff in error, was clearly and fully stated.

We find no cause to disturb the judgment below. It is therefore affirmed.

Judgment affirmed.