Kerfoot v. Cromwell Mound Co.

• Decision Date: 19 May 1884
• Parties: KERFOOT v. CROMWELL MOUND CO.
• Court: Illinois Supreme Court

115 Ill. 502

25 N.E. 960

KERFOOT

v.CROMWELL MOUND CO.¹

Supreme Court of Illinois.

May 19, 1884.

Appeal from appellate court, first district.

The contract declared upon in this case was as follows: ‘Agreement made and entered into this 23d day of August, A. D. 1875, by and between the Cromwell Mound Company, party of the first part, and David Kreigh, D. N. Burnham, O. J. Hines, John Tyrell, A. M. Jones, Barrett, Todd & Cochrane, and W. D. and C. A. Kerfoot, party of the second part, witnesseth: That the said party of the first part, in consideration of the payment to be made by the party of the second part, as hereinafter set forth, hereby covenant and agree to and with the said second party to provide and deliver a sufficient quantity of Cromwell gravel, taken from the Cromwell gravel-pit, near Lombard, Illinois, in Du Page county, to form a road-bed on the following-described streets; amount as described. * * * And the said party of the second part, in consideration of the premises, hereby agree to pay to the said party of the first part two dollars and twenty-five cents per cubic yard, to be measured by the engineer that may be agreed upon by both parties, and to be measured on the cars at the places most convenient to unload for said streets; and the said party of the second part agrees to pay for the gravel as fast as the front of any block shall be graveled. In witness whereof, the parties hereto have caused the contract to be signed by the parties representing first and second part, on the day and year first above written. O. HUSE, President Cromwell Mound Co. C. A. KERFOOT, by W. D. KERFOOT, A. M. JONES, Committee, and agents for owners of property.’Collins & Adair and J. P. Wilson, for appellant.

Ellis & Meek, for appellee.

WALKER, J.

This was an action of assumpsit, brought by appellee in the superior court of Cook county against appellant, on a contract, to recover damages for its breach. The declaration contained special and common counts. The case was tried by the court without a jury, by consent of the parties, and the issues were found for plaintiff, the damages assessed, and judgment rendered in its favor. The case was taken to the appellate court for the first district, where the judgment was affirmed, and defendant brings the record to this court, and assigns errors.

It is first urged that the superior court erred in admitting the agreement, because it was not executed by appellant, and it therefore was variant from the agreement declared on in the declaration. Whether the written agreement is binding on appellant, is the first question to be determined. Appellant's name appears in the written contract as one of the parties of the second part. The agreement purports to bind him, as well as the other parties of the second part, and the testing clause recites that the contract was caused to be signed by the parties representing the parties of the first and second parts. Not only so, but appellant signed his name to it for C. A. Kerfoot, one of the two persons appointed to represent, and who did represent, the parties of the second part. Having signed the agreement, no difference whether for himself or for C. A. Kerfoot, he must be presumed to have known that he was named as a party to it, and that it was intended to bind him according to its terms. Having signed and delivered the agreement, he must be presumed to have intended to bind himself according to its terms. He thereby adopted and bound himself by the agreement. It being binding on him, it was properly read in evidence. If it varied from the contract set out in the declaration, so as to be precluded from being read under the special counts, being a valid contract, which bound appellant, appellee having fully performed its part of the contract, it, according to all the authorities, was admissible under the common counts. It appears from the evidence, and it is not controverted, that appellant, and a number of other owners of property in the city, determined to have the streets in front of such property graveled, and they authorized Jones and C. A. Kerfoot to contract with appellee to have the gravel furnished and the work done. They agreed upon the terms of the contract, and it was reduced to writing, and executed and delivered, as above stated, among themselves; each owner agreeing to pay for the improvement that should be thus made in front of his property. The company having performed its part of the agreement, and appellant having failed to pay his portion of the money, this action was brought for its recovery, and we think the written agreement was clearly admissible under the common, if not the special, counts, in connection with the other evidence in the case, to establish a liability on the part of appellant. The contract, when admitted, showed a request by appellant for appellee to furnish the gravel and to perform the work, and it fixed the price to be paid when performed. There was therefore no error in admitting the written agreement in evidence.

The other questions presented in the superior court are questions of fact, and are settled by the findings of the appellate court. But it is insisted that the eighty-ninth section of the practice act is unconstitutional. It provides: ‘The supreme...