Nat'l Iron & Steel Co. v. Hunt

• Decision Date: 05 June 1924
• Docket Number: No. 15617.,15617.
• Citation: 312 Ill. 245,143 N.E. 833
• Parties: NATIONAL IRON & STEEL CO. v. HUNT et al.
• Court: Illinois Supreme Court

312 Ill. 245

143 N.E. 833

NATIONAL IRON & STEEL CO.

v.HUNT et al.

No. 15617.

Supreme Court of Illinois.

April 14, 1924.

Rehearing Denied June 5, 1924.

Error to First Branch, Appellate Court, First District, on Appeal from Superior Court, Cook County; James S. Baldwin, Judge.

Action by the National Iron & Steel Company against Robert W. Hunt and others. From a judgment of the Appellate Court affirming a judgment for plaintiff, defendants bring certiorari.

Reversed.

Goodrich, Vincent & Bradley, of Chicago (Warren Nichols and Frank L. Wolf, both of Chicago, of counsel), for plaintiffs in error.

Adams, Follansbee, Hawley & Shorey, of Chicago (Clyde E. Shorey, of Chicago, of counsel), for defendant in error.

THOMPSON, J.

Robert W Hunt & Co., a copartnership engaged in the business of inspecting and testing construction and building materials, was employed by the H. M. Foster Company, of Baltimore, Md., dealer in steel rails, to inspect a certain lot of secondhand re-laying rails which the Foster Company had purchased from the Jos. Joseph & Bros. Company subject to such inspection. Robert W Hunt & Co. had been in business for more than 25 years, and at the time this inspection was made it inspected approximately 80 per cent. of the re-laying rails sold in this country. The inspection was completed early in April, and a final certificate, dated April 16, 1913, was issued to the Foster Company, showing that the rails had been shipped from the Coney Island & Brooklyn Railroad Company for the Jos. Joseph & Bros. Company on account of the Foster Company, and consigned to the last-named company at Norfolk, Va. May 27 the Foster Company sold these rails to the National Iron & Steel Company, of Houston, Tex., defendant in error, and thereafter by letter requested Robert W Hunt & Co. to strike from the certificate of inspection the name of the Jos. Joseph & Bros. Company, and to show the destination to be Galveston, Tex., and to change the date of the report to June 3. Robert W. Hunt & Co. refused to change the date of the report, but complied with the request in other respects. The Foster Company attached the revised certification of inspection and the bill of lading to a sight draft which it forwarded to defendant in error, and the latter paid the total purchase price. Some weeks later the rails were delivered to a customer of defendant in error, and he refused to accept them upon the ground that they were not first-class re-laying rails. Robert W Hunt & Co. was employed by defendant in error to inspect these rails for it, and the inspector who inspected the rails in Texas reported that they were not first-class re-laying rails. Thereupon defendant in error brought an action of trespass on the case in the superior court of Cook county against plaintiffs in error, and recovered damages amounting to $4,688.24. On the trial plaintiffs in error requested the court to instruct the jury to find for them, and this request was denied. At the conclusion of the trial a motion in arrest of judgment was made and overruled, and judgment was entered on the verdict. The Appellate Court affirmed the judgment, and the cause is here by certiorari.

For an injury arising from mere negligence, however gross, there must exist between the party inflicting the injury and the one injured some privity, by contract or otherwise, by reason of which the former owes some legal duty to the latter. With respect to the inspection made in April for the H. M. Foster Company, there were no contractual relations between defendant in error and plaintiffs in error. It was more than a month after this contract for inspection was completed before defendant in error entered into negotiation with the Foster Company for the re-laying rails in question. Before defendant in error purchased these rails it did not request nor receive a report from plaintiffs in error, but it apparently acted upon the report made by plaintiffs in error to the Foster Company in April. Plaintiffs in error owed no duty to defendant in error at the time this report was made nor at the time it acted upon the report. Their contract was with the Foster Company, and their undertakings were necessarily subject to modifications and waiver by the contracting parties. If defendant in error or other third persons can acquire a right in this contract, the contracting parties are deprived of control over their own contract. The fact that plaintiffs...