Perlman v. Thomas Paper Stock Co.

• Decision Date: 18 November 1941
• Docket Number: No. 26230.,26230.
• Citation: 37 N.E.2d 815,378 Ill. 238
• Parties: PERLMAN v. THOMAS PAPER STOCK CO.
• Court: Illinois Supreme Court

378 Ill. 238

37 N.E.2d 815

PERLMAN

v.THOMAS PAPER STOCK CO.

No. 26230.

Supreme Court of Illinois.

Nov. 18, 1941.

Action by Samuel C. Perlman against the Thomas Paper Stock Company on an oral contract and for an accounting.From an adverse judgment, the defendant appeals.

Case transferred to the Appellate Court for the First District.Appeal from Circuit Court, Cook County; Robert Jerome Dunne, judge.

Poppenhusen, Johnston, Thompson & Raymond, of Chicago (Henry J. Brandt, Albert K. Orschel, Samuel W. Block, and Adolf L. A. Loeb, all of Chicago, of counsel), for appellant.

McInerney, Epstein & Arvey, of Chicago (Elmer Gertz and George L. Siegel, both of Chicago, of counsel), for appellee.

MURPHY, Chief Justice.

This action was started in the circuit court of Cook county to recover on an alleged verbal contract.The complaint filed by appellee, Samuel C. Perlman, contained two counts.They were designated as a count at law, and a count in equity, as provided by Rule No. 11 of this court.(370 Ill. 18.)Count one, the law count, charged that appellant, the Thomas Paper Stock Company, was engaged in the business of purchasing and disposing of newspaper refuse, and, being desirous of obtaining the waste paper business of the Chicago Tribune, it entered into a verbal contract with appellee whereby he was to use his best efforts to induce the Chicago Tribune to grant appellant a contract for its waste paper, and, if such a contract should be entered into between the Chicago Tribune and appellant, then appellee was to receive one-half of the profits during the life of the Chicago Tribune contract with a guaranteed minimum of $500 per month.The court further alleges that the Chicago Tribune did enter into a contract to sell its waste paper to the Thomas Paper Stock Company, and that appellee fully performed his part of the verbal contract, but that appellant failed and refused to pay him the agreed compensation except for $100, and alleged that the agreed compensation was also the fair and reasonable value of the services performed by the appellee.The second count, in equity, incorporates,by reference, all of the law count with the additional allegations and prayer for an accounting of the profits under the Chicago Tribune contract.The answer filed by the appellant denied all of the material allegations of the complaint.Both parties filed demands for a trial by jury.When the cause was advanced for trial the appellant objected to proceeding with the equity case until the count at law was heard before a jury.The objection was overruled and appellee then waived the jury demand he had filed demanding a jury trial under the equity count, but reserved the right to a trial by jury on the law count.Appellant made a specific demand for a jury before proceeding to a trial of the issues, but the court overruled this demand and ordered the parties to proceed first with the equitable cause of action.

The case was heard on its merits without a jury and the judgment order that was entered found there was no basis for an accounting or for equity jurisdiction, as prayed for in count two, but entered a judgment against the appellant on the law count in the amount of $8,900, and costs.The theory upon which the judgment is founded is that appellant was indebted to appellee under the terms of the verbal contract in the sum of $500 per month for the period of eighteen months, or $9,000, less the $100 already paid.A direct appeal to this court was taken on the ground appellant has been deprived of its constitutional right of trial by jury.

This court has no jurisdiction of this appeal.In order to confer jurisdiction on this court to review a case on direct appeal from the circuit court on the ground that a constitutional question is involved, it must appear from the record that a fairly debatable...