Pope v. Lowitz

• Decision Date: 31 October 1883
• Citation: 14 Ill.App. 96,14 Bradw. 96
• Parties: SAMUEL I. POPE ET AL.v.ELIAS LOWITZ.
• Court: United States Appellate Court of Illinois

14 Ill.App. 96

14 Bradw. 96

SAMUEL I. POPE ET AL.

v.ELIAS LOWITZ.

Appellate Court of Illinois, First District.

October Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. WILLIAM H. BARNUM, Judge, presiding. Opinion filed December 21, 1883.

In this case, a judgment in favor of Elias Lowitz, the plaintiff, and against Samuel I. Pope and Charles H. Patten, the defendants, for $1,550 and costs, was entered by confession upon a cognovit and warrant of attorney, and afterward, on motion of the defendants, proceedings on said judgment were stayed, and leave was given to the defendants to plead. The original declaration consisted of one count in assumpsit, upon a promissory note for $1,500, dated December 30, 1882, due twenty-four days after date, purporting to be executed by the defendants, by their firm name of Samuel I. Pope & Co., and payable to their own order, and by them indorsed, said note containing in the body of it a warrant of attorney, authorizing a confession of judgment in favor of the holder, for the amount appearing to be due thereon, with costs and attorney's fees. Afterward, by leave of the court, the plaintiffs amended their declaration by filing the common money counts, and the defendants pleaded the general issue, and upon the stipulation of the parties, an order was entered giving leave to the defendants to avail themselves on the trial, under said plea, of all defenses, the same as though properly pleaded.

It appeared in evidence that the defendants were engaged in the business of putting into public and private buildings, machinery, apparatus and fixtures for heating such buildings by steam, and that on the first day of February, 1882, they employed one Samuel R. Bullock to serve them in and about their said business. Said contract of employment was reduced to writing, and from the writing it appears that Bullock, for certain stipulated wages, agreed to devote his time, energies and business abilities to the service of the defendants for the term of one year, and to do everything in his power to further the interests, increase the business, and well and truly to serve them in the capacities in which they might choose to employ him, but the precise nature of his duties and extent of his powers as agent were not marked out or prescribed by the agreement.

Some time prior to the date of the note in suit, the defendants had entered into a contract with the county of Cook for putting steam heating apparatus into the county infirmary, and the business of carrying on said contract, and of collecting from the county the moneys becoming due the defendants thereunder, was committed by the defendants largely to said Bullock. In order to enable the defendants to realize the moneys due them from the county in advance of their payment in regular order, Bullock, as it seems, made an arrangement with one E. A. Filkins, who was then clerk of the county board, by which, in anticipation of the coming in of an architect's estimate, he could draw an order on said Filkins as clerk of said board, for the whole or a part of such estimate, and such order being accepted by Filkins, might be negotiated by the defendants and be afterward paid by the county treasurer, out of the moneys payable to the defendants on their contract. This scheme was communicated by Bullock to the defendants, and there being an architect's estimate in their favor for $5,088.82, the defendants drew an order on Filkins for $3,000, payable out of said estimate, and delivered it to Bullock, who obtained Filkins' acceptance. The order was returned to the defendants and by them negotiated, and it was subsequently paid by the county. Shortly afterward, as it appears, Bullock collected from the county the residue of the estimate, and paid over to the defendants only $1,088, representing to them that the county had held back $1,000 until certain boilers should be furnished for the infirmary, and that when said boilers should be delivered, the sum so held back would be paid. On the 30th day of December, 1882, the date of the note in suit, Bullock handed to the defendants the sum of $1,000, representing to them that it was the money previously retained by the county and now paid over, and the defendants so received and applied it.

It appears that on the 28th day of November, 1882, Bullock, desiring to borrow $1,000, went to one Julius Jonas, accompanied by Filkins, and applied to him for said loan. Bullock was introduced to Jonas by Filkins, as a member of the defendants' firm, and Bullock thereupon produced to said Jonas an order on Filkins for said sum of $1,000, said order being signed by Bullock in the name of the defendants and accepted by Filkins, and upon said order obtained from Jonas a loan for that amount. Said order was subsequently paid, and the evidence tended to show that such payment was made with the $1,000 collected by Bullock from the county, and withheld from the defendants as above stated.

A day or two prior to the date of the note in suit, Bullock applied to Jonas for a further loan of $1,500, and repeated the representations made on the former occasion by Filkins, viz., that he was a partner in the defendants' firm. Jonas not having the money introduced Bullock to the plaintiff, and rehearsed to him said representations as to Bullock's relations to the defendants. Bullock claimed that he wished to obtain the proposed loan for the purpose of paying the defendants' employes, and as security for said loan he produced an order for $1,500 on the clerk of the county board, payable to the order of J. Jonas & Co., and signed by him in the name of the defendants. Said order did not appear to have been accepted by the clerk of the board, but its non-acceptance was accounted for by Bullock by the fact that another person was then holding that office, who refused to accept orders of that character. Said order was not indorsed or assigned by the payees, J. Jonas & Co., but the plaintiff received it, and loaned Bullock $1,475, but required Bullock, as additional security, to make and execute to him, in the name of the defendants, the note in question in this suit. The money was paid over by the plaintiff to Bullock, in a check for $1,000, another check for $425 and $50 in currency, and the repayment by Bullock to the defendants of the $1,000 withheld from them, was made on the same day Bullock obtained the loan from the plaintiff. The defendants, at the time they received said $1,000 from Bullock, had no knowledge of the source from which he derived it, but supposed that it came from the county as represented by Bullock, nor had they any knowledge of the loan from the plaintiff, or of the execution by Bullock of said note and order.

There is no evidence apart from the representations of Filkins and Bullock to Jonas and the plaintiff, that Bullock was in fact a partner in the defendants' firm, but the evidence is directly and clearly to the contrary. It does not appear that the defendants had any knowledge of Bullock's executing commercial paper in their name, nor is there any evidence of any express authority on his part to do so. For the purpose of showing the nature and extent of his authority, however, Filkins was called as a witness, who testified that Pope, one of the defendants, in a conversation with him in relation to the defendants' obtaining a contract with the county, said that “Mr. Bullock represented them, the defendants, in connection with Cook county affairs; that everything he did, or was necessary for him to do, in relation to the matter, would be made right by their firm in every way.” Also, that defendant Patten on another occasion, in a conversation with the witness, said that “In all things connected with the contract, Mr. Bullock was authorized to act for them in every particular, for the purpose of securing the contract and carrying it out, and in doing any and all business in connection with it.” It also appears that Bullock was in fact intrusted by the defendants with the general management of their business growing out of the execution of their contract with the county.

At the instance of the plaintiff, the court gave to the jury the following instructions:

1. “If the jury shall believe from the evidence, that Samuel R. Bullock was employed by the defendants, on or about the 1st day of February, 1882, by a written contract entered into between them, and by which contract his duties were not particularly specified and pointed out; and that, after his employment, he was, by the defendants, appointed to be foreman of their store and business, and was directed from time to time by the defendants, or either of them, to solicit work from public and private corporations, and from the county of Cook, and to secure from the board of commissioners of Cook county, if he could, the acceptance of the defendants' bid upon the hospital and infirmary work, and to secure the contract therefor; and that the defendants, or either of them, introduced or represented him to E. A. Filkins as a representative of, or as interested in, the business of the firm of Samuel I. Pope & Co., and that Mr. Filkins was then the chief clerk of the board of county commissioners; and that in so introducing or representing Mr. Bullock, the defendants, or either of them, told Mr. Filkins, in words or in substance, that he was their representative, and had the power and authority to act for them, and that what he did as their representative in and about the county contract, in obtaining and carrying out the same, they would approve and confirm, then, whatever Mr. Bullock thereafter did within the scope of his authority, to be ascertained from the evidence under the instructions given you, was binding upon the defendants.

2. And if the jury shall further believe from the evidence that as the work and the furnishing of materials upon the infirmary contract progressed, the defendants, or either of them, learned through...