Doggett v. Jemima Ream.
| Decision Date | 31 October 1879 |
| Parties | SAMUEL J. DOGGETTv.JEMIMA REAM. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the County Court of Cook county; the Hon. MASON B. LOOMIS, Judge, presiding. Opinion filed February 4, 1880.
Mr. WILLIAM B. BRADFORD, for appellant; that where services are rendered at the request of another or under such circumstances as imply an acceptance of such services, the law will imply a promise to pay, cited Bishop on Contracts, § 75; 2 Parsons on Contracts 46; Bradberry v. Helms, Ill. Syn. Rep. 14; Schills v. McEwen, Ill. Syn. Rep. 85.
As to the burden of proof being upon him who avers a material fact: 1 Greenleaf's Ev. § 74; Starkie on Ev. 586; McClure v. Pursell, 6 Ind. 334.
An instruction that the jury might award punitive damages was not warranted by the evidence in this case: Waldron v. Marcier, 82 Ill. 550; T. P. & W. R. R. Co. v. Patterson, 63 Ill. 304.
The instruction as to discrediting a witness was proper, and should have been given unmodified: U. S. Ex. Co. v. Hutchins, 58 Ill. 44; Ammerman v. Teeter, 49 Ill. 400; McClure v. Williams, 65 Ill. 390.
Messrs. DENT & BLACK, for appellee; that the burden was upon defendant to show that he did not agree to perform the services gratuitously, cited 2 Greenleaf's Ev. § 32; American v. Rimpert, 75 Ill. 228; Howard v. Bennett, 72 Ill. 297; Clay F. & M. Ins. Co. v. Wusterhausen, 75 Ill. 285; Pettis v. Westlake, 3 Scam. 536.
As to the instruction upon the question of damages: Story on Agency, § 338; Bartlett v. Board of Education, 59 Ill. 364.
The court may modify an instruction if erroneous: Morgan v. Peet, 32 Ill. 281.
The instruction as to discrediting a witness was erroneous: Chicago v. Smith, 48 Ill. 107; Brennan v. The People, 15 Ill. 511; Crabtree v. Hagenbaugh, 25 Ill. 233; Chittenden v. Evans, 41 Ill. 251; May v. Tallman, 20 Ill. 443; Roth v. Smith, 54 Ill. 431; Cossitt v. Hobbs, 56 Ill. 231; Henneberry v. Morse, 56 Ill. 394; Davis v. Willson, 65 Ill. 525.
This was an action on the case, brought by appellee, Jemima Ream, against appellant, Samuel J. Doggett, to recover moneys alleged to be wrongfully withheld by Doggett from appellee. Verdict and judgment for $500 were rendered in the court below for the plaintiff, and Doggett brings the case to this court by appeal.
The declaration contains two counts. The first count alleges, in substance, that on the first day of June, 1878, the plaintiff, at the request of defendant, employed him as her agent in the matter of collecting certain moneys then due from the New York Life Insurance Company, and authorized him to collect the moneys in plaintiff's behalf; that thereafter the defendant, acting as agent for and in plaintiff's behalf, received from the company $5,000, which he ought to have paid over to plaintiff; but he wrongfully and fraudulently refused to pay over and deliver the money, and converted to his own use $500 thereof.
The second count alleges the same employment, and that thereafter the defendant, as such agent, collected from the company $5,000 for the plaintiff, which it became his duty to pay over to the plaintiff; yet that, disregarding his duty, although requested, defendant refused to pay over the money, but converted $500 thereof to his own use; that upon such wrongful refusal plaintiff offered and proposed that he might retain $150 in view of the services rendered by him, if he would at once pay over the balance, which sum it is averred was more than a reasonable compensation for his services; but defendant refused to accept the same and pay over the sum of $350, or any part thereof, and has hence hitherto always wrongfully withheld and coverted to his own use the sum of $500.
The principal contention in the court below was as to the terms upon which the defendant was to undertake the collection; the plaintiff claiming that he was to do it gratuitously while the defendant claimed that he expected to receive a reasonable compensation for his services. The jury evidently adopted the plaintiff's theory, and gave her a verdict for the whole amount claimed. If the case turned upon the correctness of the finding of the jury under proper instructions, we should see no ground for reversing the judgment; but we think the second instruction given on the part of the plaintiff was erroneous, and was calculated to mislead the jury. It appears from the evidence that the plaintiff was the holder of a policy of insurance on the life of her son, in the New York Life Insurance Company, for the sum of $10,000. The son having died shortly after the policy was taken out, and some question having been raised as to whether payment might not be resisted by the company, an arrangement was entered into between the plaintiff, Mrs. Ream, and Mr. Doggett, who was a neighbor and friend of the family, under which Doggett was to act as the agent of Mrs. Ream in adjusting the claim against the insurance company. A compromise upon the payment by the company of $5,000 was soon after agreed upon, with the approval of Mrs. Ream; the money was paid over to Doggett, by the insurance company, and he in turn paid $4,500 of the amount to Mrs. Ream; retaining $500, which he claimed as compensation for his services in making the collection. The balance thus remaining in his hands was demanded of him by Mrs. Ream, which he refused to pay; and after the failure of two or three efforts to adjust the matter, this suit was brought, with the result above stated.
It is alleged in the plaintiff's declaration, and is not disputed, that the defendant was employed by the plaintiff, as her agent, to make the collection; nor is it denied that he rendered services in making the collection. The only contest was as to whether or not the defendant agreed to render his services gratuitously; and to that question the evidence was solely directed.
The second instruction given on the part of the plaintiff was as follows: “If the jury believe from the evidence that the defendant received five thousand dollars of the moneys of the plaintiff, as the agent of the plaintiff, and which it was his duty to account for to the plaintiff, then the burden of proof is upon the defendant to show either that there was an...
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