Freet v. American Elec. Supply Co.

• Decision Date: 20 February 1913
• Citation: 100 N.E. 933,257 Ill. 248
• Parties: FREET v. AMERICAN ELECTRICAL SUPPLY CO.
• Court: Illinois Supreme Court

257 Ill. 248

100 N.E. 933

FREET

v.AMERICAN ELECTRICAL SUPPLY CO.

Supreme Court of Illinois.

Feb. 20, 1913.

Appeal from Branch B, Appellate Court, First District, on Appeal from Municipal Court of Chicago; McKenzie Cleland, Judge.

Action by C. E. Freet, doing business as the Fyricide Manufacturing Company against the American Electrical Supply Company. From a judgment for defendant, plaintiff appeals. Affirmed.

See, also, 152 Ill. App. 205.Hoyne, O'Connor & Irwin, of Chicago (Carl J. Appell, of Chicago, of counsel), for appellant.

Harry P. Simonton, of Chicago, for appellee.

COOKE, J.

Appellant, C. E. Freet, brought suit in the municipal court of Chicago against appellee, the American Electrical Supply Company, to recover the contract price of fire extinguishers alleged to have been sold and delivered by appellantto appellee. A trial before a jury resulted in a verdict in favor of defendant, upon which the court rendered judgment against the plaintiff for costs. The plaintiff prosecuted an appeal to the Appellate Court for the First District. The cause was assigned to branch B of that court and the judgment was there affirmed. A certificate of importance having been granted, appellant has prosecuted a further appeal to this court.

Appellant is, and was on March 19, 1907, engaged in the business of manufacturing fire extinguishers in New York City. He conducted this business under the tradename of the Fyricide Manufacturing Company. Appellee is, and was on said date, engaged in business in the city of Chicago. On said 19th day of March one George E. Weiler, who was in appellant's employ, called upon appellee at its place of business in Chicago and negotiated and concluded a contract between appellant and appellee, the material provisions of which are as follows: (1) Appellant engages appellee as general sales agent for the Fyricide extinguisher in the city and vicinity of Chicago and the entire state of Illinois for a period of 12 months, and agrees to pay appellee a salary of $125 per month, dating from payment by it for first shipment of extinguishers. (2) Appellant agrees to canvass, at his expense, the territory aforesaid three times a year, and to turn over to appellee all orders on hand at the time of signing the contract and all orders received during the term of the contract within the territory above named; said orders to be filled from appellee's stock. (3) Appellant agrees to sell and deliver $1,000 worth of fire extinguishers, f. o. b. destination, terms net cash on delivery, and to furnish such additional stock of extinguishers as appellee's trade may require from time to time, without further expense to appellee. (4) At the expiration of the time and upon the fulfillment of the contract by appellee, appellant agrees to repurchase from appellee all extinguishers which it has on hand, at the same price paid therefor by appellee. (5) Appellee engages with appellant as general sales agent for the term of one year, and agrees that it or its agents will devote a reasonable amount of time to the sale of Fyricide extinguishers. (6) Appellee agrees to carry a stock of 800 extinguishers, of the value of $1,000 cost price, terms net cash on delivery of the extinguishers. (7) Appellee agrees that, if the sales made by it during the first six months shall not average $450 per month, appellant shall have the right to cancel the contract and repurchase the extinguishers from appellee at said cost price. (8) Appellee is given the right and authority to collect for all sales made through said agency, and at the end of each month, after deducting therefrom $125 for salary and the difference between the builling price and selling price, to remit the balance to appellant, together with a report of the number of extinguishers sold. It is then provided that the appellant shall, upon receiving such report, replace the extinguishers sold and paid for by appellee without charge or expense, and, if the sales shall not be sufficient to pay appellee's salary and the cost of replacing the extinguishers sold, the difference shall be made up by appellant.

Weiler executed the contract on behalf of the appellant, designating himself as ‘special representative’ of the Fyricide Manufacturing Company. The contract was also duly executed by appellee. Appellee at the same time executed a written order, directed to the Fyricide Manufacturing Company, for 800 fire extinguishers, and delivered this order, together with the contract executed by it, to Weiler, who immediately forwarded them by mail to appellant. On the same day, and immediately after the contract was executed, Weiler requested and obtained from appellee the following letter, dated March 19, 1907, addressed to the Fyricide Manufacturing Company and signed by appellee: ‘We herewith give your Mr. Weiler authority to take orders for Fyricide extinguishers as per terms of contract signed this date.’ William H. Gross, the treasurer of appellee, acted on behalf of appellee in making the contract. He testified that he signed the letter above mentioned at Weiler's request, and upon his representation that when he went out to solicit orders under the terms of the contract he wanted something to show that the orders were to be shipped through appellee, as appellee had by the contract been given the agency for the state of Illinois. Weiler immediately sent a copy of this letter to appellant. On the following day Weiler called upon the Hawthorne Hardware Company, of Elgin, and A. W. Wheelock, of Rockford, and on March 21st called upon C. E. Wheelock & Co., of Peoria, and obtained the execution of contracts by those parties. Each of these contracts purported, on its face, to be a contract with the Fyricide Manufacturing Company. All purport to be signed by the appellee, the American Electrical Supply Company, and by the Fyricide Manufacturing Company; Weiler executing them as special representative of the former company in one instance and as special representative of the latter company in the other two instances. The contracts were all identical in form and substance with the contract which had been made between appellant, acting through Weiler, and appellee, except in the following particulars: The contract with the Hawthorne Hardware Company limited its territory to the city and vicinity of Elgin, and provided that appellant should pay the hardware company a salary of $50 per month, and that the hardware company should purchase from appellant 12 dozen fire extinguishers, costing $242, the same to be billed and shipped by appellee, and appellant was given the right to cancel the contract at the expiration of six months in case the sales during that period should not average $200 per month. The contract with A. W. Wheelock limited his territory to the city and vicinity of Rockford, and in other respects was the same as the contract with the Hawthorne Hardware Company, except that Wheelock was to purchase 20 dozen extinguishers, costing $420. The contract with C. E. Wheelock & Co. limited their territory to the city and vicinity of Peoria, and in other respects was the same as the contract with A. W. Wheelock. Weiler also obtained from A. W. Wheelock a signed order, directed to appellee, for 20 dozen fire extinguishers at $21 per dozen, and a like order from C. E. Wheelock & Co. for the same number of fire extinguishers at the same price. These orders, on their face, were unconditional. Immediately after obtaining the execution of these contracts and orders Weiler returned to Chicago, and, without informing appellee of the contracts which he had made at Elgin, Rockford, and Peoria, turned over to appellee the written orders from A. W. Wheelock and C. E. Wheelock & Co., and gave appellee a verbal order from the Hawthorne Hardware Company for 12 dozen fire extinguishers. Relying upon these orders turned over to it by Weiler appellee, on March 22, 1907, ordered from appellant 52 dozen fire extinguishers, and requested appellant to send them direct to A. W. Wheelock, C. E. Wheelock & Co., and the Hawthorne Hardware Company, designating the number to be sent to each. Appellant, on March 25, 1907, shipped 800 fire extinguishers to appellee upon its original order, and on the following day shipped the fire extinguishers to the other parties above named in accordance with appellee's second order.

On April 2, 1907, the Hawthorne Hardware Company sent a letter to appellant, which, omitting the address and signature, is as follows: ‘Is Mr. Geo E. Weiler authorized to make and sign contracts for your company? Kindly inform us as to the above by return mail, and oblige.’ In answer to this, appellant, under date of April 3, 1907, wrote the Hawthorne Hardware Company as follows: ‘We have yours of the 2d in reference to Mr. Weiler's authority to make and sign contracts for us, in regard to which will state that he has a contract with us giving him authority to make and sign contracts for this company, and we will add that he has been very successful in closing contracts for us.’ On April 18, 1907, the Hawthorne Hardware Company shipped the fire extinguishers, which it had received, back to appellant, sent appellant the bill of lading, and notified appellant that on account of gross misrepresentations made ot it by Weiler it would have nothing further to do with him or any firm that he might represent. Appellant sent this letter to appelle...