The Bangor Furnace Co. v. Charles J. Magill.

• Decision Date: 23 January 1884
• Citation: 1884 WL 9762,108 Ill. 656
• Parties: THE BANGOR FURNACE COMPANYv.CHARLES J. MAGILL.
• Court: Illinois Supreme Court

108 Ill. 656

1884 WL 9762 (Ill.)

THE BANGOR FURNACE COMPANY

v.CHARLES J. MAGILL.

Supreme Court of Illinois.

Filed at Ottawa Jan. 23, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Circuit Court of Cook county; the Hon. KIRK HAWES, Judge, presiding.

Mr. ROBERT RAE, for the appellant:

Service of process upon the vice-president of a foreign corporation is not authorized by statute. A plea in abatement was filed to the writ, asking that the same be quashed. Union National Bank of Chicago v. Bank, 90 Ill. 56.

At common law a corporation can not be served outside of the State under whose laws it is created. Midland Pacific Co. v. McDermid, 91 Ill. 170; Tappan v. Boner, 5 Mass. 196; Peckham v. North Parish, 16 Pick. 286; McQueen v. Middleton, 16 Johns. 5; Clark v. Stevens & Co. 1 Story, 536; Bushel v. Insurance Co. 15 H. & R. 176; Missouri Telegraph Co. v. N. B. 74 Ill. 217.

The contract in this case was severable, each sum being recoverable on the performance of the several items. Debal & Plank v. W. & E. H. Nemott, 9 Iowa, 403; Withers v. Reynolds, 2 B. & A. 404; Sircle v. Patterson, 14 Wend. 276; 2 Smith's Leading Cases, 42. See, also, 13 Wis. 658.

On the question of damages, counsel cited Winnesheik Ins. Co. v. Scheuller, 60 Ill. 470; Bourland v. Gibson, 7 Bradw. 230.

As to demurrer to evidence, or motion to instruct jury to find the issues for defendant, counsel cited Phillips v. Dickerson, 85 Ill. 15; Pratt v. Stone, 10 Bradw. 635; Houfes v. Wilder, 37 Ill. 510; Coleman v. Johnson, 84 Id. 269.

Obedience to order to answer over by filing the general issue was not a waiver of the plea in abatement to the original writ. Delaney v. Clement, 3 Scam. 202; Drake v. Drake, 83 Ill. 526; Harkness v. Hyde, 98 U. S. 478.

Messrs. SCHUYLER & FOLLANSBEE, for the appellee:

Defendant was to employ the “Lotus” for the whole season, and as iron ore was the only thing mentioned in the contract to be carried, this fact precludes the idea that anything else was contemplated, or that it was not to be furnished pursuant to the contract. Expressio unius est exclusio alterius. Hair v. Horton, 5 B. & A. 715; Cook v. Jennings, 7 T. K. 381; Hill v. Bearse, 10 Allen, 406; 2 Parsons on Contracts, (5th ed.) 516.

The measure of damages is the difference between what the vessel could have earned by performing the contract, and what she actually earned in other employment. (Woods' Mayne on Damages, 253, sec. 371.) So that if the defendant was not bound to furnish the ore, it was bound to employ the vessel in any event, and was liable for a breach in not doing so. Aspdin v. Austin, 5 A. & E. 670.

If a party appears for any purpose except to object to the process or service, he waives all objections thereto, although the service may be void, or there may have been no service. Mitchell v. Jacobs et al. 17 Ill. 235; Easton et al. v. Altum, 1 Scam, 250; Long v. Trabue, 8 Bradw. 132; Knott v. Pepperdine, 63 Ill. 219; Mineral Point R. R. Co. v. Keep, 22 Id. 9; Baldwin v. Murphy, 82 Ill. 485.

The defendant, by filing its plea of the general issue, waived its demurrer. Cobb v. Ingalls, Beecher's Breese, 233; Ferguson v. Rawlings, 23 Ill. 69; Burnham v. Webster, 5 Mass. 266; Lindsay v. Stout, 59 Ill. 491.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This action was brought by Charles J. Magill, against the Bangor Furnace Company, on a contract made and entered into by Rhodes & Bradley, as agents for and on behalf of defendant. The contract is set out in hæc verba in the declaration, from which it appears plaintiff agreed the “Lotus” would carry seven thousand tons of iron ore during the season of 1873, from Escanawba to St. Joseph, in Michigan, for two dollars per ton, and also three thousand tons from Marquette to St. Joseph, for three dollars and twenty-five cents per ton, “freight to be due and payable upon delivery of each cargo at St. Joseph,” and in consideration of the undertaking of plaintiff, Rhodes & Bradley, agents, agreed to employ such vessel, and agreed to pay the freights, as above mentioned. It was further agreed, in case the “Lotus” was unable to carry all the “ore stipulated for above,” then another standard vessel, of about the same draught of water, might be substituted on the same terms, should plaintiff elect to do so. It was also further agreed plaintiff should be “““personally responsible” for the delivery at St. Joseph of the whole ten thousand tons of ore, and that Rhodes & Bradley would promptly “lighter off” all cargoes from the vessel or vessels carrying such ore. The contract contains other provisions, but it will not be necessary to state them to an understanding of the questions of law discussed. The judgment rendered in the trial court having been affirmed in the Appellate Court, there are no questions of fact to be considered in this court. Whether Rhodes & Bradley were the agents of defendant, and whether defendant was an undisclosed principal, to whom credit was given, and whether plaintiff waived the breach of the contract, were all questions of fact, and the issues as to them were found in favor of plaintiff. It will be assumed these facts were well found in favor of plaintiff, under the evidence, and will be so treated in considering the questions of law raised.

The defendant is a corporation existing under the laws of the State of Michigan, and it is objected the court did not obtain jurisdiction by any lawful service of process on it. Pleas in abatement, and motions calling in question the sufficiency of the service, were filed or made in the trial court, and the decisions of the court touching them are assigned for error. An answer to all the objections taken to the service of process is, that after the decisions of the court of which complaint is made, defendant filed the general issue to the declaration, and had a trial of the cause upon its merits. That, by the previous decisions of this court, was a waiver of any defects in the service of summons, and it would even obviate the necessity of the service of any process at all. The rule is well understood that after a party has filed the general issue to the declaration, and had a full trial of the cause upon its merits, he will not be permitted to say he was not in court.

It is to be observed plaintiff's instructions proceed on the theory a refusal by defendant, or its agents, to furnish ten thousand tons of iron ore to be carried, constituted a breach of the contract. On the other hand, defendant asked the court to instruct the jury, as a matter of law, there was no undertaking on behalf of defendant to furnish plaintiff with ten thousand tons of ore to be carried. By its instructions the court construed the contract as obligating defendant to furnish ten thousand tons of ore to be carried under the contract, and a refusal so to do as a breach of the agreement, and that decision raises the principal question of law to be considered. It is thought the construction given by the court to the contract is the true one. It is readily seen p...