Ostrander v. Scott

• Citation: 161 Ill. 339,43 N.E. 1089
• Parties: OSTRANDER v. SCOTT.
• Decision Date: 12 May 1896
• Court: Supreme Court of Illinois

161 Ill. 339

43 N.E. 1089

OSTRANDER

v.SCOTT.

Supreme Court of Illinois.

May 12, 1896.

Appeal from appellate court, First district.

Assumpsit by Walter Scott, doing business as Walter Scott & Co., against John W. Ostrander. There was judgment for plaintiff, which was affirmed by the appellate court (60 Ill. App. 322), and defendant appeals. Reversed.

Edwin F. Abbott, for appellant.

S. Leonard Boyce, for appellee.

CARTWRIGHT, J.

Appellee, doing business under the name of Walter Scott & Co., brought this suit in assumpsit to recover from appellant the sum of $1,210 claimed to be due as the balance of an account between the parties. There was a recovery for the amount of the claim, and the judgment was affirmed by the appellate court. It was shown at the trial that the defendant had been the Western agent of the plaintiff in disposing of printing presses manufactured by plaintiff at Plainfield, N. J. The agency was terminated May 1, 1891. Plaintiff had an account against the defendant amounting to $5,282.58, the items of which were not disputed; but defendant claimed that he was entitled to be allowed the sum of $1,210 for commission on goods sold by plaintiff, on the ground that he had negotiated with the purchasers for the sale of the presses before the expiration of his agency, and for that reason had become entitled to the commissions. Defendant inclosed his bill for the commissions claimed in a letter to the plaintiff, as follows:

‘Chicago, Nov. 24, 1891. Walter Scott & Co., Plainfield, N. J.-Dears Sirs: Inclosed we hand you our check for $4,072.57, in full account to date. We inclose you bill of commission of presses sold in our territory before you notified us that we were no longer your agent, and as we had seen all those parties, and had worked up the business, we are entitled to our commission. Wishing you success, with kind regards, we remain, respectfully, J. W. Ostrander. C. W. Ostrander.

‘Dec. 1st. S.

‘P. S. We could mention other presses you sold, but we are not working them up. We do not say anything about them.’

A check, reading as follows, was inclosed in this letter:

‘Chicago, Ill., Nov. 24, 1891. No. ___. The First National Bank of Chicago, pay to the order of Walter Scott & Co. $4,072.57 (four thousand seventy-two and 57/100 dollars) in full of all demands to date. J. W. Ostrander.’

Plaintiff indorsed the check, and collected the money, writing to the defendant as follows:

‘Plainfield, N. J., Dec. 1st, 1891. Mr. J. W. Ostrander, 77 Jackson Street, Chicago, Illinois-Dear Sir: We have yours inclosing check for $4,072.57, which amount we place to your credit. We do not, however, accept that amount in full payment of your account, as we cannot allow your claim of $1,210.00 for commission on presses sold by us and others. Our letter of March 11th, 1890, sets forth on what terms and conditions we sold machines to you. We will expect you to remit the balance at an early date. Yours, truly, Walter Scott & Co.’

Afterwards the following letters passed between the parties:

‘Chicago, Dec. 9, 1891. Walter Scott & Co., Plainfield, N. J.-Gentlemen: In reply to your favor of the 1st instant, will say that we certainly intend the check sent you to be in settlement of our account in full. Now, if you do not want to accept it as such, you may return it. We are entitled to a commission on sale mentioned. We are, very respectfully, J. W. Ostrander. J. G. Ostrander.’

‘Plainfield, N. J., Dec. 17, 1891. Mr. J. W. Ostrander, Chicago, Ill.-Dear Sir: As we informed you in ours of the 1st inst., we credit you with the amount of your check, $4,072.57, but not in full of your account. The fact that you wish it so does not make it so, nor is that any reason why you should not pay what is now long due. You are not entitled to any commission on machines sold by us, or by others for us. See our letter of March 11th, 1890, referred to in our last. We shall expect you to remit the balance of account, $1,210.00, at an early date. Yours, truly, Walter Scott & Co.’

Plaintiff testified that defendant did not sell the presses for which commissions were claimed, and that he was not indebted to defendant in any sum on that account; while defendant testified that he had seen the purchasers, and negotiated for the sales, before the termination of the agency; that he claimed the commissions, and that his right to them was unsettled and in dispute at the time the check was given.

It is complained that improper instructions were given by the court at the request of the plaintiff, as follows: ‘The jury are instructed that a receipt is prima facie evidence only, and can be varied, explained, or contradicted by parol evidence. The jury are instructed that if they find from the evidence that the defendant gave to the plaintiff his check, in which check there was embodied a receipt, the receipt is open to explanation the same as if it were on a separate instrument. The jury are instructed...