Niehoff v. Dudley

• Decision Date: 30 April 1866
• Parties: CONRAD L. NIEHOFF et al.v.CHARLES H. DUDLEY et al.
• Court: Illinois Supreme Court

40 Ill. 406

1866 WL 4504 (Ill.)

CONRAD L. NIEHOFF et al.

v.CHARLES H. DUDLEY et al.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Circuit Court of Cook county; the Hon. E S. WILLIAMS Judge, presiding.

The opinion of the court contains a sufficient statement of the case.

Mr. LEWIS UMLAUF, for the appellants.

Messrs. MCALLISTER, JEWETT & JACKSON, for the appellee. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by Charles H. Dudley and Samuel Gummer, in the Cook Circuit Court, against Peter J. Cass, William H. Ranstead, Conrad S. Niehoff, and Gustavus Troost. The declaration contained one special, and the common money counts. The special count was on five promissory notes, executed by Cass & Co. to C. H. Dudley, for different sums, and each specifies that the sum named is to be paid for furnishing a particular person therein named as a volunteer in the army or navy, and specifies as the time of payment, when the volunteer shall be received into the service. The declaration avers that each person thus named in the several notes, had been duly received into the service, and that the money was due and unpaid.

Niehoff and Troost pleaded in abatement that they were not partners with Cass & Ranstead in any business at the time these notes were given. Nor did they authorize them, or either of them, or any other person, to make these contracts on their behalf, or any or either of them. This plea was verified by affidavit. A replication was filed averring that the promises and undertakings were made by the defendants jointly and as copartners. A default was entered as to Cass and Ranstead; and a trial was had by the court and a jury, resulting in a verdict for $475.25. A motion for a new trial was entered by appellants and overruled, and a judgment entered by the court; and the cause is brought to this court by appeal for the reversal of the judgment.

It appears that Cass & Co. did business in a room in the rear of Niehoff & Co's. banking house, and that a door connected the two rooms. That Cass & Co. rented the room. There was an article of agreement between the two firms read in evidence. It recites that Cass & Co. were to carry on and manage their business of substitute brokers at the banking house of Niehoff & Co., and to procure and furnish substitutes and volunteers for the army and navy of the United States. And Niehoff & Co. agreed and bound themselves, when necessary in the course of the business of the said firm of Cass & Co., to advance and disburse to said firm of Cass & Co., upon certificates of exemption, signed by Capt. James, U. S. provost-marshal, at the city of Chicago, or by Capt. Harty of Chicago, in his official capacity, sums to an amount not exceeding $5,000. And Cass & Co. agreed to pay Niehoff & Co. one-third of the rent of the office, and all other office expenses, such as light, fuel, etc., and to pay once a week or oftener if convenient and agreeable, the one-third of the profits in their business. The agreement also contained this stipulation: “This agreement is to be understood, and limited to the express specifications afore mentioned, and is not to be construed in a sense which connects or in any way combines the said firms of C. S. Niehoff & Co. with the said firm of Cass & Co. in the said business of said Cass & Co., as substitute brokers; nor in any way to hold the said firm of C. S. Niehoff & Co. liable and responsible for any agreements or acts whatever of the said firm of Cass & Co., in the course of said business of said Cass & Co., other than above specified and expressed.”

Were it not for this last clause it might be, that these firms would have become partners as firms. But by it they have expressly excluded such an inference. This, like all other agreements, must be enforced according to the...