Argued
March 28, 1898
Appeal, No. 40, Jan. T., 1898, by defendants, from judgment
of C.P. No. 1, Phila. Co., Dec. T., 1893, No. 634, on verdict
for plaintiff. Affirmed.
Assumpsit
against an unincorporated land association for moneys
expended and services rendered. Before BEITLER, J.
At the
trial the court admitted under objection and exception
portions of plaintiff's deposition as follows:
"Q.
Are you the legal plaintiff in this case? If so state how the
indebtedness of defendant to you was incurred. A. I am the
legal plaintiff in this case. The indebtedness of the
defendants to me was incurred under and through their
employment of me to take the care and charge and management
of their property at Western Springs, Cook county, Illinois
a suburb of Chicago, where the defendants owned 109 acres of
land, now subdivided into lots and blocks, and called Bryn
Mawr. Defendants employed me to take charge of that property
to have it surveyed and subdivided into lots; to have plats
made and printed; to advertise lots in their Bryn Mawr
subdivision for sale by publishing advertisements in
newspapers, by sending out printed maps and circulars, by
furnishing free railroad tickets to such persons as might
wish to go out to examine the land, and in other ways
calculated to get their property on the market. My employment
also included having streets curbed and graded, and having
sidewalks laid and the property improved and fitted for the
inspection of purchasers, and the general care and management
of that property and their interests here. They directed me
from time to time, and under their direction I did and had
done all those things which my employment called for, and
their debt to me is for my services and disbursements in the
course of that employment.
"Q.
Did you render an account of the amount due you to
defendants, if so, when or about was the same delivered to
said defendants? A. I repeatedly rendered statements of the
said account to the defendants, and they never questioned or
disputed the account until after this suit was begun, but
they always acknowledged it was due to me and often promised
to pay it. A statement of that account, of which said exhibit
'B' is a substantial copy, was mailed to defendants
about June 20, 1893.
"Q.
Were you present at any meeting of the association of
defendants, and if so what action was taken on the account
due you? A. I was present at a meeting of the Bryn Mawr
Association in Philadelphia, just before August 20, 1893
and, to the best of my recollection, on August 19, 1893, a
statement of my account was before the association at that
meeting. It was either the statement marked exhibit
'B,' attached to the commission, or one substantially
like it. My account was discussed before that meeting and
fully talked over between the defendants and me. They agreed
that my charge of $500 for services was fair and moderate,
and agreed to pay it, and that I was entitled to interest, as
charged, on the sums I had paid out for them. Each item was
gone over and explained to the defendants by me, and they
finally promised to pay the whole account. They asked for
vouchers, and I told them I had receipted bills for part of
the items, and would produce them, but for other items, such
as that of $50.00, for railroad tickets, $10.00 for postage,
the several items for exchange and some others, I never had,
and could not get vouchers. They asked for copies of the
newspapers which had the advertisements charged for. I told
them they had some of them, and it was impossible for me to
obtain them, but that every item charged for advertising was
actually on their account, and that they had known and
ordered and approved it at the time it was made. They finally
agreed that it was so and agreed to pay the advertising as
charged."
Cross
interrogatories:
"Q.
If you answer to the thirteenth interrogatory in chief that
the items contained in exhibit 'B' are true charges
against the defendants for money disbursed on their account
then answer fully further and specifically under what
authority you made such disbursements and each of them. Was
the alleged authority in writing, and if so produce the same
to the commissioner and have it annexed to your answer to
this interrogatory. A. My employment by the defendants and my
authority for making the disbursements charged in my said
account was at first by word of mouth from the officers and
managing committee of the defendants. They came to my office
and employed me. One of their managing committee lived in
Chicago. Afterward we had much correspondence about it. They
wrote to me and I wrote to them about it repeatedly, and upon
every important detail of it. About the time Mr. Newland
wrote me the letter of August 23, 1893, attached to the
commission, they examined the whole account and expressly
approved all I had done and paid out, and said they would
have paid me then if they had the money. By reason of the
confusion and dispersion of my papers above referred to, I
cannot attach the letters which passed between the defendants
and myself to this deposition." [2-7]
The
court refused to admit in evidence the following letter from
B. F. Cronkrite, the legal plaintiff, to William S. Harvey.
[8]
"CHICAGO,
February 2, 1894.
"MR.
W. S. HARVEY,
"46
Forrest Bldg.,
"Philadelphia,
Pa.
"My
Dear Sir: -- Your favor of the 24th ult. and telegram of the
26th received, which was the first intimation that I had ever
had of the $1,000 having been paid on my account against the
Bryn Mawr Land Association. The circumstances are as follows:
When I lay sick and helpless in bed, and it was a question
whether I would ever recover sufficiently to be fit for
business, and not responsible for my acts, Franklin L. Chase,
who has been acting as my attorney since about May last, came
to my bedside and induced me to assign the entire Bryn Mawr
account to his partner, Mr. Eliel, pretending that it would
be much the easiest and best way for me to realize. I simply
obeyed as a dog would the command from his master.
"It
appears that the account was placed for collection in the
hands of Mr. Sallinger, of your city, and $1,000 was promptly
paid him and suits instituted against various stockholders of
the Bryn Mawr. I have not learned the exact date that the
$1,000 was paid to Mr. Sallinger. I wired you on the 31st
ult. for this information, to which I have as yet received no
reply. Had this $1,000 been paid over to me at the time of
its collection it would have saved me an endless amount of
worry and anxiety and expense; but this dishonest scoundrel,
Mr. Chase, has never advised me of its collection, but used
the money, and not satisfied with this, since you have so
kindly advised me of the situation, and I have exposed him
and called upon him for a settlement, he has presented me
with a bill for $5,000, absorbing the $1,000, as well as the
entire account of the Bryn Mawr, and pretends that I still
owe him a balance of about $1,500 or $1,600. He had been paid
his fees in full up to the time I was taken sick in
September, and while during my illness he rendered me
considerable service, $500 would have been an extravagant
price for him to have charged.
"You
can now see how I have again been robbed when ill and
helpless and compelled by circumstances to again put trust...
