Rollins v. Duffy

• Decision Date: 31 October 1883
• Citation: 14 Bradw. 69,14 Ill.App. 69
• Parties: ALONZO W. ROLLINS ET AL.v.OWEN DUFFY.
• Court: United States Appellate Court of Illinois

14 Ill.App. 69

14 Bradw. 69

ALONZO W. ROLLINS ET AL.

v.OWEN DUFFY.

Appellate Court of Illinois, First District.

October Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding. Opinion filed December 21, 1883.

This was an action of assumpsit by appellants against appellee, to recover an over-draft of $494.95, made on them by appellee, and by them paid. Appellants were commission men, doing business in Chicago, and appellee is the proprietor of the Leavenworth Woolen Mills, at Leavenworth, Kansas. In September, 1881, appellee was in Chicago, and had a conversation with appellant, Shaw, in relation to appellant's selling for him some woolen blankets, samples of which he had prior to that date sent them. As the result of that conversation, 553 blankets were shipped by appellee to appellants, and by them, as commission merchants, were sold during the month of October, 1881, to various parties, and an account of the sales of the same was made out at the end of the month and forwarded to appellee.

During the same month, a second consignment of 500 blankets was made to appellants in response to a letter written by them to appellee, which said consignment was received the latter part of said month. Appellee drew drafts upon appellants of $2,500, October 8th, and $1,500 October 17th, which were paid.

After paying the last draft, appellants notified appellee that he had overdrawn, and that they did not hold goods enough to make the deficit good. The last consignment of blankets, owing to the dullness of the market, were not sold that season, but were carried over to 1882, when appellants were obliged to sell them at a greatly reduced price.

Appellants claim that they received the blankets as commission men, to sell and dispose of to the best advantage, and that they have sold and disposed of them at the highest market prices. Appellee claims that he made a special contract with appellants, September 20, 1881, in and by which appellants guaranteed a sale of the blankets to net him forty-eight cents per pound over and above all expenses. Appellee filed a plea of set-off containing only the common counts, and under said plea claimed as a balance due him from appellants, $179.

The case was tried by a jury, resulting in a verdict for appellee for $179, for which he had judgment. The plaintiff's motion for a new trial being overruled, they appealed to this court.

Mr. FRANK S. WEIGLEY, for appellants; that when there is a special contract, and the breach of the contract is the gravamen of the action, plaintiff must declare specially, cited Russell v. Gilmore, 54 Ill. 149; Phœnix M. L. Ins. Co. v. Baker, 85 Ill. 414; 1 Chitty on Pl. 387.

A special agreement for the exchange of notes, with a warranty of the note exchanged, can not be given in evidence in support of the money counts: Richardson v. Smith, 8 Johns. 43??; Markley v. Withers, 4 T. B. Monr. 15; Spratt v. McKinney, 1 Bibb, 597; Morris v. Cleasby, 4 M. & Sel. 566; Tracey v. Rogers, 69 Ill. 662.

Where a factor sells below the price named in the instructions, in an action by the principal for the wrongful sale, it is competent for the factor to show, in reduction of the damages, that the goods at the time of the sale and down to the time of trial were worth no more than the price at which they were sold: Blot v. Boiceau, 3 Comst. 78; Frothingham v. Evertom, 12 N. H. 239; Parker v. Braucker, 22 Pick. 45; Brown v. McGraw, 14 Pet. 494; Field v. Farmington, 10 Wall. 149; Austin v. Crawford, 7 Ala. 342; Ainsworth v. Partillo, 13 Ala. 460; Hilton v. Vanderbilt, 82 N. Y. 591; Blair v. Childs, 10 Heisk. 199; Beadles v. Hartmus, 7 Baxt. 476.

Declarations and statements of a party made after the transaction was had, and which are merely a recital of such transaction as such party then chooses to relate, and offers by him to compromise, etc., can not be used by him in his own favor: Wilson v. Sherlock, 36 Me. 297; Small v. Gilman, 48 Me. 515; Banfield v. Parker, 36 N. H. 358; Salem v. Lynn, 13 Met. 544; Johnson v. Sherwin, 3 Gray, 374; Young v. Commonwealth, 28 Penn. 501; State v. Black, 6 Jones L. 510; Rutland v. Haythorne, 36 Ga. 380; Webb v. Kelly, 37 Ala. 340; Hall v. State, 40 Ala. 706; Brand v. Abbott, 42 Ala. 501; Simmons v. Norwood, 21 La. Ann. 421; Gardner v. The People, 3 Scam. 83.

Mr. EDWARD F. COMSTOCK, for appellee; that the objection as to the introduction of evidence to prove a special contract, can not be raised for the first time in this court, cited Wilhelm v. The People, 72 Ill. 468; Hartford Ins. Co. v. Farrish, 73 Ill. 166; Brannan v. Strauss, 75 Ill. 234; Drury v. Dungan, 2 Bradwell, 15.

WILSON, J.

The principal contention in the trial court was, as to whether appellants guaranteed a sale of the blankets, as claimed by appellee, at a price that should net him forty-eight cents, or whether the blankets were to be sold by appellants, as claimed by them, on commission, for the best price they could get. On this question the evidence was conflicting, and the jury having found for appellee, we must assume, for the purpose of the present appeal, that they adopted his theory of the case. At forty-eight cents per blanket, the two drafts for $2,500 and $1,500, respectively, drawn by appellee on appellants, were more than paid by the sum of $179, the amount found by the jury in appellee's favor. The first question, therefore, to be considered, is whether appellee was entitled to judgment for such balance, under his plea of set-off.

The plea contains the usual averments of the common counts in a declaration in indebitatus assumpsit, for goods sold and delivered, materials furnished, money had and received, money due on an account stated, etc. Under this plea appellee seeks to recover damages for the breach of a...