Mr. Justice Adams
delivered the opinion of the court.
Appellant’s counsel object, first, that the case was tried out of its order; second, that certain evidence was improperly admitted; third, that prior to any contract between appellant and appellees in respect to the retaining fee sued for, the relation of attorney and client existed between the parties, and therefore it devolved on appellees to prove that the alleged retaining fee was fair and reasonable; fourth, that Mr. Smith, if any one, is liable. It appears from the record that June 12, 1901, on motion of appellant, an order was entered allowing appellant to withdraw a demurrer which it had filed to the declaration, and to plead instanter; that June 21,1901, on motion of appellant, an order was entered that the cause be passed till July 8, 1901; that at last date, on appellant’s motion, it was ordered that the cause be passed till July 15, 1901, and July "16, 1901, a jury was impaneled in the cause.
We think it clear that each time appellant moved to have the cause passed till another day, it impliedly consented to a trial on the day to which it was passed, or as soon thereafter as it might suit the convenience of the court, in view of pending business. The objections to evidence were as to certain letters written by appellant’s vice-president,. Esler, to appellees, and to letter-press copies of letters written by appellees to Esler as vice-president of appellant. Appellees, as appears from the bill of exceptions, gave appellant specific notice to produce, on the trial, the letters of which letter-press copies were introduced in evidence, and appellant’s attorney stated on the trial that he had been informed by his client that search had been made for letters addressed to Esler, and that appellant was unable to find them. That they had been received was not denied. Appellant’s counsel, as copies of appellees’ letters to vice-president Esler were introduced in evidence, objected to some of them generally, and to others as not the best evidence, and that no foundation had. been laid for secondary evidence. Appellee Coffeen testified that the letters which went from appellees’ office were dictated by him, and were sent by mail to Esler or the corporation in the usual course of business.
Counsel for appellant say, in their printed argument, that there is no evidence that the letters to Esler were ever deposited in the mail. This objection, even if not contradicted by the testimony of Coffeen, could not be availed of now, because no objection sufficiently specific to include it was made in the trial court. It may be said, generally, as to the letters, that the internal evidence of the correspondence is, that Esler and the appellant received appellees’ letters. The letter-press copies were properly admitted in evidence.
No objection was made to any letters from Esler to appellees, except that any letter of his making any contract selecting an agent or employing appellees as counsel, was objected to, on the ground that by appellant’s by-laws he could not make such contract, which objection will be hereinafter considered. It conclusively appears from the evidence, as we think, that appellees were not employed as appellant’s attorneys or counsel prior to or about the time of their drafting the contract of November 15, 1899, and although prior to that time Mr. McConnell had performed some services for appellant, such services seem to have been performed, not as appellant’s attorney, but, perhaps, with the expectation or hope that his firm would be employed by appellant in the event of appellant’s establishing business in Chicago. Nothing is claimed on account of such services by appellees, who, on the trial, stated that they relied solely on the agreement to pay them, in advance, $1,000 as a retaining fee. Counsel for appellant claim that notwithstanding appellant, without any fault on the part of appellees, withdrew its application for license, severed its connection with Smith by paying hint $1,250, ceased to do any business with appellees, and turned over' the business to others, while appellees were not only ready and willing but anxious to go on with any business pertaining to the subject-matter of the contract with Smith which appellant might intrust to it, appellees can not recover the amount of their agreed retaining fee. The agreement with Smith, although released, in so far as he is concerned, is not ineffective as to appellees, and that agreement specifically provides:
“ It is further understood and agreed between the parties hereto, that the law firm of Tenney, McConnell, Golfeen & Harding shall be retained as general counsel and attorneys for said Union Surety & Guaranty Company in and for the State of Illinois, their services and expenses to be paid from the commissions'hereinbefore specified. A retainer of $1,000 shall be paid said law firm at once and deducted from the advance on commissions at the rate of $100 per month.”
Who was to retain appellees and who to pay them? Manifestly appellant. It is provided in the agreement, that Smith, on the 15th of each month, should draw on appellant, payable on demand, for an amount equal to the differencé between twenty-five per cent of the premiums paid during the preceding month and the guaranteed sum of $500 per month. The retainer was to be paid at once, in advance. Clearly, Smith could not so pay it, because he had not commenced business. Appellant was to pay it in advance, and subsequently deduct it from moneys to be paid Smith on commissions, as provided by the contract. This is what was intended by the parties before the contract between appellant and Smith was drafted, as evidenced by appellees’ letter to Esler of November 11, 1899, and his letter to appellees of November 15, 1899; and the contract was construed by both parties in accordance with this intention, as evidenced by appellees’ letter of December 20,1899, to Esler, enclosing their bill for retainer; Esler’s letter to appellees of December 30, 1899, acknowledging receipt of appellee’s letter, and containing the words, “ The check for vour fee will be mailed as soon as the treasurer returns from Philadelphia, which will be Tuesday next;” and the letter from Mason, appellant’s secretary, to appellees, of date January 3, 1900, stating:
“ In the matter of the payment of your bill for $1,000, we beg to advise you that this will receive our immediate attention as soon as we are advised that the company has been admitted by the insurance department to do business in Chicago.”
That the company was not so admitted until afterward, when appellant, without any apparent cause, so far as appellees are concerned, placed the matter in other hands, is certainly not appellees’ fault. The contract was not only intended, in fact, to guarantee a retaining fee to appellees of $1,000 in advance, but such is its plain meaning, and so it has been construed by appellant and appellees.
The declaration contains a count on an account stated, and we are of opinion that the letters last referred to sustain that count. 2 Greenleaf on Ev., 13th Ed., Sec. 126; 1 Jones on The Law of Evidence, Secs. 51 and 289; Weeks on Attorneys, pp. 553-4.
But it is contended that Esler had no authority to write the letter of December 30, 1899, admitting the retainer to be due, because of the following by-laws of appellant:
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Mr. Justice Adams
delivered the opinion of the court.
Appellant’s counsel object, first, that the case was tried out of its order; second, that certain evidence was improperly admitted; third, that prior to any contract between appellant and appellees in respect to the retaining fee sued for, the relation of attorney and client existed between the parties, and therefore it devolved on appellees to prove that the alleged retaining fee was fair and reasonable; fourth, that Mr. Smith, if any one, is liable. It appears from the record that June 12, 1901, on motion of appellant, an order was entered allowing appellant to withdraw a demurrer which it had filed to the declaration, and to plead instanter; that June 21,1901, on motion of appellant, an order was entered that the cause be passed till July 8, 1901; that at last date, on appellant’s motion, it was ordered that the cause be passed till July 15, 1901, and July "16, 1901, a jury was impaneled in the cause.
We think it clear that each time appellant moved to have the cause passed till another day, it impliedly consented to a trial on the day to which it was passed, or as soon thereafter as it might suit the convenience of the court, in view of pending business. The objections to evidence were as to certain letters written by appellant’s vice-president,. Esler, to appellees, and to letter-press copies of letters written by appellees to Esler as vice-president of appellant. Appellees, as appears from the bill of exceptions, gave appellant specific notice to produce, on the trial, the letters of which letter-press copies were introduced in evidence, and appellant’s attorney stated on the trial that he had been informed by his client that search had been made for letters addressed to Esler, and that appellant was unable to find them. That they had been received was not denied. Appellant’s counsel, as copies of appellees’ letters to vice-president Esler were introduced in evidence, objected to some of them generally, and to others as not the best evidence, and that no foundation had. been laid for secondary evidence. Appellee Coffeen testified that the letters which went from appellees’ office were dictated by him, and were sent by mail to Esler or the corporation in the usual course of business.
Counsel for appellant say, in their printed argument, that there is no evidence that the letters to Esler were ever deposited in the mail. This objection, even if not contradicted by the testimony of Coffeen, could not be availed of now, because no objection sufficiently specific to include it was made in the trial court. It may be said, generally, as to the letters, that the internal evidence of the correspondence is, that Esler and the appellant received appellees’ letters. The letter-press copies were properly admitted in evidence.
No objection was made to any letters from Esler to appellees, except that any letter of his making any contract selecting an agent or employing appellees as counsel, was objected to, on the ground that by appellant’s by-laws he could not make such contract, which objection will be hereinafter considered. It conclusively appears from the evidence, as we think, that appellees were not employed as appellant’s attorneys or counsel prior to or about the time of their drafting the contract of November 15, 1899, and although prior to that time Mr. McConnell had performed some services for appellant, such services seem to have been performed, not as appellant’s attorney, but, perhaps, with the expectation or hope that his firm would be employed by appellant in the event of appellant’s establishing business in Chicago. Nothing is claimed on account of such services by appellees, who, on the trial, stated that they relied solely on the agreement to pay them, in advance, $1,000 as a retaining fee. Counsel for appellant claim that notwithstanding appellant, without any fault on the part of appellees, withdrew its application for license, severed its connection with Smith by paying hint $1,250, ceased to do any business with appellees, and turned over' the business to others, while appellees were not only ready and willing but anxious to go on with any business pertaining to the subject-matter of the contract with Smith which appellant might intrust to it, appellees can not recover the amount of their agreed retaining fee. The agreement with Smith, although released, in so far as he is concerned, is not ineffective as to appellees, and that agreement specifically provides:
“ It is further understood and agreed between the parties hereto, that the law firm of Tenney, McConnell, Golfeen & Harding shall be retained as general counsel and attorneys for said Union Surety & Guaranty Company in and for the State of Illinois, their services and expenses to be paid from the commissions'hereinbefore specified. A retainer of $1,000 shall be paid said law firm at once and deducted from the advance on commissions at the rate of $100 per month.”
Who was to retain appellees and who to pay them? Manifestly appellant. It is provided in the agreement, that Smith, on the 15th of each month, should draw on appellant, payable on demand, for an amount equal to the differencé between twenty-five per cent of the premiums paid during the preceding month and the guaranteed sum of $500 per month. The retainer was to be paid at once, in advance. Clearly, Smith could not so pay it, because he had not commenced business. Appellant was to pay it in advance, and subsequently deduct it from moneys to be paid Smith on commissions, as provided by the contract. This is what was intended by the parties before the contract between appellant and Smith was drafted, as evidenced by appellees’ letter to Esler of November 11, 1899, and his letter to appellees of November 15, 1899; and the contract was construed by both parties in accordance with this intention, as evidenced by appellees’ letter of December 20,1899, to Esler, enclosing their bill for retainer; Esler’s letter to appellees of December 30, 1899, acknowledging receipt of appellee’s letter, and containing the words, “ The check for vour fee will be mailed as soon as the treasurer returns from Philadelphia, which will be Tuesday next;” and the letter from Mason, appellant’s secretary, to appellees, of date January 3, 1900, stating:
“ In the matter of the payment of your bill for $1,000, we beg to advise you that this will receive our immediate attention as soon as we are advised that the company has been admitted by the insurance department to do business in Chicago.”
That the company was not so admitted until afterward, when appellant, without any apparent cause, so far as appellees are concerned, placed the matter in other hands, is certainly not appellees’ fault. The contract was not only intended, in fact, to guarantee a retaining fee to appellees of $1,000 in advance, but such is its plain meaning, and so it has been construed by appellant and appellees.
The declaration contains a count on an account stated, and we are of opinion that the letters last referred to sustain that count. 2 Greenleaf on Ev., 13th Ed., Sec. 126; 1 Jones on The Law of Evidence, Secs. 51 and 289; Weeks on Attorneys, pp. 553-4.
But it is contended that Esler had no authority to write the letter of December 30, 1899, admitting the retainer to be due, because of the following by-laws of appellant:
“ The vice-presidents are to -perform such duties as are assigned to them by the president. In case of the death, absence, or incapacity of the president, his powers shall be exercised as far as needful and his duties discharged except as far as otherwise provided in these by-laws by the first or second vice-president in the order of their nomination.
He shall also have power to nominate and appoint all such employes, agents and clerks as he may find necessary to transact the business of the company. Such nominations, and appointments shall be subject to the ratification of the executive committee and the board of directors.”
Van Schaick testified that during the correspondence between Esler and appellees, Mr. Roberts, the president, was daily in his office.
That vice-president Esler was the active agent of the appellant in negotiating with reference to the establishment of appellant’s business in Chicago, is evident from the correspondence between him and appellees, and that what he had done prior to the execution of the contract between appellant and Smith wTas assented to by appellant’s president, is evidenced by the signature of the president to that contract, which merely expresses the result of the correspondence between Esler and the appellees. The execution of that contract by appellant’s president, the contract being in accordance with the correspondence between Esler and appellees, is evidence that the transaction of the business, as to establishing a branch in Chicago, was committed by the president to Esler, the vice-president.
The fact testified to by Van Schaick, that the president was in his office daily, tends, as we think, to prove that he knew what Esler was doing in relation to the business in question. But what have counsel to say of the letter of Secretary Mason, dated January 3, 1900, which unequivocally admits the retainer % Prima facie, the letter of a secretary of a corporation, signed as secretary, as Mason’s letter is, is the letter of the corporation, and there is not a particle of evidence that Mason’s letter was unauthorized.
Appellant’s counsel cite text writers to the effect that when an attorney is not employed for a definite time and is discharged, or where complete performance on his part is rendered impossible or prevented by bis client, he may recover for prior services rendered. The citations are not in point. This is not a suit for past services, but for a retaining fee, which appellant agreed to pay, has admitted to be due, and payment of which it has attempted to avoid by means certainly not creditable. That a suit may be maintained for a retaining fee is substantially held in Schnell v. Schlernitzauer, 82 Ill. 439.
The appellant’s evidence was wholly insufficient to sustain a verdict in its favor, and we think the court properly instructed the jury to find the issues for appellees and ,to assess appellees’ damages at the sum of $1,000. Under the pleadings and appellant’s affidavit of merits, which went only to the excess over $150 of the claim of appellees, appellant was entitled to judgment for $150 in any event (Practice Act, Sec. 36), and in the written motion for a new trial, filed by appellant, it is not objected that the damages are excessive.
The judgment will be affirmed.