Nash v. Classon

• Decision Date: 09 November 1896
• Citation: 45 N.E. 276,163 Ill. 409
• Parties: NASH et al. v. CLASSON.
• Court: Illinois Supreme Court

163 Ill. 409

45 N.E. 276

NASH et al.

v.CLASSON. ^*

Supreme Court of Illinois.

Nov. 9, 1896.

Appeal from appellate court, First district.

Action by Class Classon against Nash, Wright & Co., Charles T. Nash, and others, for the price of certain corn sold and delivered by plaintiff to defendants. From a judgment of the appellate court (55 Ill. App. 356) affirming a judgment for plaintiff, defendants appeal. Affirmed.Duncan & Gilbert, for appellants.

Fowler Bros., for appellee.

Prior to 1889, H. S. Gilbert operated several grain elevators in the vicinity of Ottawa, one of which was located at Wedron, in La Salle county. The general office, where the business of the several elevators was mostly transacted in paying for grain, etc., was in the city of Ottawa, and the superintendency of the business in the several elevators was directed by Gilbert from that general office. Several years prior to the date above mentioned, Gilbert was the owner of these several elevators, but, becoming embarrassed financially, conveyed them to appellants Nash, Wright & Co. After that conveyance was made, Nash, Wright & Co. entered into a contract whereby the business at those elevators was to be run for their benefit, and under their control, and with money furnished by them; and by that contract allowed Gilbert the right to redeem the property upon the payment of the amount of his indebtedness to the appellants and the interest thereon; and during the time Gilbert was to manage and control the business of these elevators appellants were to pay him a salary of $150 per month. They were to have another agent at that office, and that second agent was one Perrin, who was the bookkeeper. Appellants opened a deposit with the First National Bank of Ottawa, and checks were drawn against that fund in their name, signed by Perrin. Other agents were employed at other elevators, and payments for grain there purchased were usually made by checks drawn by appellants in the name of Nash, Wright & Co. Gilbert, by the announcement on the sign at his office, had the same marked ‘H. S. Gilbert, Agent. Grain and Commissions.’ On about the 3d of November, 1891, the appellee, at the Wedron elevator, made a contract for the sale of corn, which was made with one Smith, an agent of Nash, Wright & Co. By that contract appellee was to shell and haul his corn, and, when ready to sell at any time during the month, was to receive within five cents per bushel of the price quoted in Chicago for the same grade of corn. Between the 5th and 14th of November appellee delivered at the warehouse in Wedron 6,379 bushels and 28 pounds of corn, and on the 28th day of November appellee went to the warehouse in Wedron, and stated to Smith that he was then ready to sell. Smith replied that he had not received all the market reports that day, but had the Chicago Tribune of that morning, and showed to appellee the quotation of prices. A discussion then came up whether appellee would be entitled, under the contract, to the price on the 27th of cash corn, or the price at which futures closed. On the 27th cash corn closed at 70 and future at 74. Smith directed appellee to see Gilbert, saying he knew all about it. When appellee called on Gilbert at Ottawa, the latter refused to recognize the contract and settle for the corn. The chief controversy in this case is whether there was a contract made by any one authorized to make it on the part of appellants with appellee; and, second, there was no proof of the price of corn on the 28th. In the trial court a verdict for plaintiff and judgment thereon for $4,641.96 was entered. That judgment was affirmed by the appellate court of the First district. 55 Ill. App. 366.

PHILLIPS, J. (after stating the facts).

The first proposition submitted by appellants as a defense to this action and as the reason urged for the reversal of the judgment of the appellate court is that the record contains no evidence legally sufficient to establish any liability on the part of defendants. Incidentally, under this head, we are asked to construe the contract entered into between appellants and Gilbert for the purpose of determining whether or not the relation of principal and agent existed between them; thus also determining whether or not Smith was the agent of appellants, and authorized to enter into the contract of purchase of the corn from appellee on behalf of appellants. Ordinarily, the construction of a contract in writing is for the court, and not for a jury. 3 Am. & Eng. Enc. Law, p. 167, and cases cited. The court should construe the written instrument and instruct the jury as to its legal effect. Sigsworth v. McIntyre, 18 Ill. 127;Lintner v. Millikin, 47 Ill. 179. In a case, however, where it is sought to establish the question of agency by parol proof of various acts, conduct, and business transactions of the parties, and a written instrument is offered, not for the express purpose of proving the agency, but as an element tending to prove it, and in corroboration of parol proof, no construction need to be given it by the court, but it is a question for the jury as to whether all the evidence, taken as a whole, establishes the relationship of principal and agent.

If a contract or other instrument in writing be offered for the express purpose of proving the relation of partnership agency or like character, and the allegation be founded on such instrument, then, as before stated, the construction of the instrument is for the court. In this case that part of the contract between appellants and Gilbert which is material to the issues involved is as follows: ‘Whereas, it is understood and agreed between the parties hereto that the said party of the second part shall engage in and conduct the business of buying and selling grain at the stations of Ottawa, Grand Ridge, Wedron, Serena, Utica, and Buffalo Rock, all of said places being in said county of La Salle, under the conditions and limitations hereinafter expressed; that is to say: Said party of the second part shall conduct said business under the direction and supervision of said parties of the first part, who shall be represented in the management of said business by an...