McCorkle v. Weinstein

• Decision Date: 29 June 1977
• Docket Number: No. 76-307,76-307
• Citation: 8 Ill.Dec. 567,365 N.E.2d 953,50 Ill.App.3d 661
• Parties: , 8 Ill.Dec. 567 Charles McCORKLE, Jr., Plaintiff-Appellant, v. Burton I. WEINSTEIN, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 953

365 N.E.2d 953

50 Ill.App.3d 661, 8 Ill.Dec. 567

Charles McCORKLE, Jr., Plaintiff-Appellant, v. Burton I. WEINSTEIN, Defendant-Appellee.

No. 76-307.

Appellate Court of Illinois, First District, Third Division.

June 29, 1977.

Dolores B. Horan, Chicago, for plaintiff-appellant.

Boehm & Weinstein, Chartered, Jerold B. Schnayer, Chicago, for defendant-appellee.

Burton I. Weinstein, pro se.

McNAMARA, Justice.

The plaintiff, Charles McCorkle, Jr., a court reporter, brought this action against the defendant, Burton I. Weinstein, an attorney, for court reporting services rendered in the amount of $1,974.45. At a trial without a jury, the trial court at the conclusion of plaintiff's case entered judgment in favor of the defendant. In so holding, the court specifically found that defendant had been retained as an attorney by a client and had acted as an agent for that client in requesting plaintiff to furnish court reporting services; that the client was known to plaintiff at the time said order had been placed, and the client's name was disclosed by defendant or his employee to plaintiff or his employee; and that plaintiff knew defendant was an attorney and agent and as such engaged plaintiff's services. The court also found that at no time did the defendant agree to become personally liable for plaintiff's services. It is undisputed between the parties that plaintiff rendered court reporting services in the amount sought.

The defendant testified as an adverse witness under Section 60 of the Civil Practice Act that he represented his brother, Lawrence Weinstein, in seeking a variance permit before the Illinois Pollution Control Board. In such capacity, defendant requested plaintiff to furnish two discovery depositions. Defendant also requested plaintiff to render his ordinary services in hearings before the board. Defendant believed that the request had been made by telephone, but he did not recall whether it was he or someone from his office who had made the call. The pollution board had informed defendant that plaintiff had an arrangement with it, and the board instructed defendant to use plaintiff's services. The defendant had used plaintiff's services in prior matters. When the request for court reporting services was made, plaintiff was advised that defendant's client was Lawrence Weinstein and that Niles Savings and Loan was an additional party. Defendant's client Lawrence won the variance but, because of the time consumed and change in interest rates, the project did not proceed and defendant's brother sustained a vast financial loss. Defendant never received any legal fees, and such fees are still due and owing. Defendant sent many copies of plaintiff's bill to his brother, but received no payment. Niles Savings had abandoned the petition in its early stages, and defendant had never forwarded plaintiff's bill to it. Defendant received express permission from his brother in hiring plaintiff and in engaging the services of expert witnesses. Because of the financial plight of defendant's brother, defendant's father had paid the bills of some of the expert witnesses. Niles Savings had paid for the printing of the original petition. The petition may have named Spanish Court Condominiums as a party, but defendant did not represent its residents. Franklin Savings and Loan had lent money to Niles Savings in the project, but did not appear as a party in the petition.

The plaintiff testified that he had not taken the court reporting orders in question personally. Plaintiff's records indicated that defendant or someone from his office telephoned one of plaintiff's employees requesting the services. Plaintiff's records indicated that defendant should be billed at his office. The bills sent out by plaintiff on their face indicated that defendant was the principal. Defendant never objected to such a designation. Plaintiff knew that defendant was an attorney and plaintiff assumed that defendant represented a client. Plaintiff had telephone conversations with defendant in trying to collect the bill. Defendant told plaintiff that it was his brother's bill, and that it was not his obligation. However, defendant told plaintiff that he was trying to get the bill paid. Defendant never pledged, either orally or in writing, to be personally responsible for the court reporting services rendered.

Before entering judgment for the defendant, the trial court commented that at the time of the entry into the contract, all of the principals' names had not been disclosed, but they were learned at a later time.

Citing what he concedes to be a minority of jurisdictions, Judd & Detweiler, Inc. v. Gittings (1915), 43 App.D.C. 304; Burt v. Gahan (1966), 351 Mass. 340, 220 N.E.2d 817; Roberts, Walsh & Co. v. Trugman (1970), 109 N.J.Super. 594, 264 A.2d 237; C. C. Plumb Mixes, Inc. v. Stone (1971), 108 R.I. 75, 272 A.2d 152, plaintiff initially contends that the promise of the attorney to pay for such services as the court reporter furnished here has been implied from the conduct of the parties, custom, and a consideration of the nature of the attorney's role in litigation and society generally. However, in Illinois the law concerning non-liability of attorneys or other agents for services they request pursuant to their representation of clients is set forth in Petrando v. Barry (1955), 4 Ill.App.2d 319 at p. 322, 124 N.E.2d 85 at p. 87, where a printer unsuccessfully sued an attorney for the cost of briefs and abstracts he had prepared:

"Where an agent in making a contract discloses his agency and the name of his principal, or where the party dealing with the agent knows that the agent is acting as an agent in making the contract, the agent is not liable on the contract, unless he agrees to become personally liable." (Citations omitted.)

The Petrando court, at p. 322, 124 N.E.2d at p. 87, also relied on the rule as...