Pomeroy v. Roberts

• Decision Date: 30 April 1857
• Citation: 8 Peck 294,18 Ill. 294,1857 WL 5565
• Parties: SAMUEL B. POMEROY et al.v.GEORGE R. ROBERTS.
• Court: Illinois Supreme Court

18 Ill. 294
1857 WL 5565 (Ill.)
8 Peck (IL) 294

SAMUEL B. POMEROY et al.
v.
GEORGE R. ROBERTS.

Supreme Court of Illinois.

April Term, 1857.

Appeal from Cook County Court of Common Pleas.

THIS was an action of assumpsit, commenced in the Cook county court of common pleas, by summons, issued in favor of the above named appellee, against the said appellants. The declaration is on the common counts: First, against the defendants, as partners, doing business under the firm name of S. B. Pomeroy & Co. Second, against them, as partners, doing business under the firm name of C. S. Parmlee. With the declaration is filed an account for lumber sold by plaintiff to defendants, amounting to $395.06. The defendants filed an affidavit of merits, with the plea of the general issue; also the affidavit of one of the defendants, denying that they were copartners, doing business in the name of C. S. Parmlee. The case was tried before a jury at the September term of the common pleas court, 1856, J. M. WILSON, judge, presiding.

There was a verdict and judgment for the appellee for $395.06. A motion for a new trial was denied.

HOYNE and MILLER, for appellants.

SHUMWAY, WAITE and TOWNE, for appellee.

[18 Ill. 295]

CATON, J.

We find no complaint with the instructions of the court, but, after a careful examination of the testimony, we are satisfied that the jury misapplied the law to the facts and found a wrong verdict, which should have been set aside. The facts, as uncontradicted and uncontroverted, are these: The defendants, on the 1st day of January, sent Parmlee to Geneseo, as their agent, to buy produce for them, and from time to time remitted him funds as he required, and charged him with the amount. With these funds he purchased grain and shipped it to Chicago to the defendants, with which they credited him at prices paid for it, of which he advised them weekly. During the winter of 1854-5, he also bought pork for them and shipped it in the same way. During the summer of 1854, Parmlee advised them at what prices he could sell lumber and salt and requested them to send him some. Accordingly, during that season, they sent him four car loads of lumber and some salt, which he sold for them during that season, excepting some culls of the lumber, which were left over until the next season. There is no doubt that this is the extent of the business arrangements between those parties, and the extent of the authority conferred on the agent by the defendants. Parmlee himself does not...