The Chicago v. Fox
| Decision Date | 30 April 1866 |
| Citation | 41 Ill. 106,1866 WL 4545 |
| Parties | THE CHICAGO AND GREAT EASTERN RAILWAY COMPANYv.HARRY FOX et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.
The opinion of the court contains a statement of the case.
Mr. E. WALKER, for the appellant.
Messrs. FULLER & SHEPARD, for the appellees.
This was an action of assumpsit on the common counts and on an account stated, brought in the Cook Circuit Court, by Harry Fox and William B. Howard against The Chicago and Great Eastern Railway company, and a verdict for plaintiff. A motion for a new trial was overruled and exception taken. Judgment was rendered on the verdict, to reverse which this appeal is taken.
It appears that plaintiffs were engaged in the business of dredging, pile-driving, etc., when, about October 4, 1865, Mr. Hudson, the assistant superintendent of defendants came to plaintiffs' office to get them to estimate the cost of driving a pile bridge at Mud lake, and also for driving piles for the purpose of extending the abutment across the Illinois and Michigan canal where their road crossed it. The superintendent went with the agent of the plaintiffs to look at the work. The superintendent then asked the agent to give him an estimate for what plaintiffs would do the work, when the agent told him he would give him a proposition on the next day, and on that day he sent the following, which was left at defendants' office:
“CHICAGO, 5th October, 1865.
CHAS. H. HUDSON, Esq., Asst. Supt. C. and G. E. R. R.: Dear sir,--The work you require to be done at Mud lake and the canal is of such a nature that we prefer to let you have a pile-driver and crew by the day at the rate of fifty dollars; time to reckon from the date the machine leaves until she is returned, you to pay the cost of moving the machine from place to place.
FOX & HOWARD.”
To this proposition, Hudson made no reply.
About two weeks after this, a man, named Vosburgh, came for the pile-driver, saying, he had come from this railroad company, and kept it seventeen days working at Mud lake and the canal, and some extra work was done with it on Sundays.
Plaintiffs' agent was never at the work while it was progressing, but when the work was done, and no one came around to settle for it, he went to the railroad office to get the pay, when he was told that the company had nothing to do with it, as Vosburgh had the contract, and he must pay.
The agent told Hudson that Vosburgh was a stranger to him, and to the plaintiffs, and that they had not looked to him but to the company. Hudson then said the company owed Vosburgh, and if the plaintiffs could get an order from him, they would pay it. An order was procured from Vosburgh, but when, is not shown, at any rate, it was not paid by the company, as they had paid Vosburgh before his order was presented, all but one hundred and thirty-nine dollars, and for that amount the company was willing and prepared to accept the order. Hudson had no power to make...
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