Schmidt v. Pfau

• Decision Date: 23 September 1885
• Citation: 114 Ill. 494,2 N.E. 522
• Parties: SCHMIDT v. PFAU.
• Court: Illinois Supreme Court

114 Ill. 494

2 N.E. 522

SCHMIDT

v.PFAU.

Supreme Court of Illinois.

Filed September 23, 1885.

Appeal from appellate court, Third district.

W. W. Berry, for appellant.

Carter & Govert, for appellee.

MULKEY, C.J.

J. Louis Pfau, Jr., the appellee, brought an action of assumpsit to the March term, 1883, of Adams county circuit court against John Schmidt, the appellant, John L. Pfau, Sr., and Theodore Brittenberger, as partners, lately doing business under the firm name of the Aetna Iron Works, to recover for work and services claimed to have been rendered by him as general manager of the company from the twenty-fifth day of February, 1877, to the twenty-fifth day of February, 1880. There was no service on Brittenberger. Defendant Pfau admitted the justness of plaintiff's claim, and consented that judgment might be rendered against him.

Pleas of the general issue, statute of limitations, and of set-off were filed by Schmidt, and the cause was tried before the court and a jury, resulting in a verdict and judgment in favor of plaintiff for $3,000, which was affirmed by the appellate court for the Third district, and Schmidt allowed appeal to this court.

The partnership in question was formed in 1875 for the purpose of carrying on a foundry and machine-shop at Quincy, Illinois. At that time appellant was engaged in the practice of medicine, and Pfau, Sr., was carrying on other branches of business on his own account, namely, the manufacture of hot-air furnaces and the galvanized iron and tin and stove business, and evidence tends to show that these two members of the firm, particularly the latter, were expected to give but little if any of their personal attention to the business of the company. The understanding seems to have been that in discharging their share of the labor and duties pertaining to the business they were to be respectively represented by their sons, the appellee and Albert Schmidt, a young man then about 18 years of age, under the general supervision of Brittenberger, who was to give his personal attention to the affairs of the concern. Under this arrangement neither of the sons was to receive from the company any compensation for his services.

The business of the partnership was continued under this arrangement until the latter part of 1875, when Britten berger abandoned the concern, and its management thereafter devolved mainly upon appellee, without any other or different understanding, and it so continued until the twenty-fifth of February, 1877, when, as claimed by appellee, it was mutually agreed between himself, his father, and appellant that young Schmidt should retire from the business, and that appellee should take charge of it as chief manager, and give to it his undivided time and attention. That appellee did serve as manager of the concern for three years from the twenty-fifth of February, 1877, is conceded. But it is claimed by appellant that appellee's compensation was fixed at $300 and traveling expenses for the first year, and that by a subsequent agreement he was to receive after the first year, in lieu of a fixed salary, a commission on sales,-10 per cent. on small jobs and 3 on large ones. This alleged agreement, so far as it relates to compensation, is positively denied by appellee-that that matter was left open and unsettled.

It is also claimed by appellant that appellee did not give to the business his entire time and attention, as he had agreed to do, and that by reason of its neglect, and his unskillfulness and bad management, the company sustained heavy losses and their business proved a failure.

These several claims of the appellant are distinctly denied by appellee, and the evidence relating to the subject is conflicting and wholly irreconcilable. Such being the case, it is hardly necessary to add that the issues thus raised must be regarded as conclusively settled in favor of appellee by the judgment of affirmance in the appellate court. The errors relied on for a reversal here question the correctness of the ruling of the trial court upon the admissibility of evidence, and in the giving, refusing, and modification of instructions.

It appears that on the twenty-fifth day of February, 1880, the parties met at their business office for the purpose of general settlement, at which it was determined to stop and wind up the business. Appellee, in speaking of this meeting in his testimony, incidentally stated as his opinion that the partnership business was thus suddenly terminated because he told appellant he would not work for $300 a year. Upon his cross-examination he was asked this question: ‘Was not the true reason of this firm quitting business that it had lost money from beginning to the end?’ The court, upon objection, held the question improper, and this is assigned for error. The ruling of the court in this respect affords no ground for reversal.

The answer to the inquiry, let it have been the one way or the other, would have had no bearing upon the merits of the controversy or the issues submitted to the jury. The main question for their determination was, what, if anything, did the defendants owe the plaintiff on account of his services prior to their stopping business? The answer of the witness, if responsive to the question, would at most have been but the expression of an opinion upon a mere collateral matter, and on this ground the question, to say the least of it, was of doubtful propriety, and consequently within the discretion of the court to allow it or not, as it thought proper. The parties had a clear right to stop business at the time they did, without regard to the motives or reasons that induced them to do so, and hence any evidence on that subject would more than likely have diverted the attention of the jury from the real issue involved. In any view we perceive no error in disallowing the question.

It is also claimed that the court erred in refusing to permit Pfau, Sr., to answer on cross-examination the following question: ‘Do you think during 1877 the profits of yourself and Louis on your share of the profits amounted to $2,000?‘ The object of this inquiry was to show that the business of Pfau, Sr., in a part of which appellee had an interest, was successful, while that of the AEtna Iron Works was unprofitable, leaving it to be inferred by the jury that appellee had fostered the business of himself and father to the neglect of that of the firm.

Waiving the competency of the evidence offered, which, to say the least of it, is extremely doubtful, we do not think it was proper on cross-examination; it was not germane to anything called out on direct examination, and, if admissible at all, it was clearly matter in chief. The court thereupon ruled correctly in holding it improper. The only pretense for asking it is the witness' statement on redirect examination that appellee ‘spent pretty much all his time’ in the employment of the firm. Upon what principle this statement would authorize appellant to go into a general inquiry as to what profits the witness, or the witness and his son, were realizing in a wholly different business, and one in which the...