The Erie v. Cecil

• Decision Date: 17 November 1884
• Citation: 1884 WL 9997,112 Ill. 180
• Court: Illinois Supreme Court
• Parties: THE ERIE AND PACIFIC DESPATCHv.GEORGE CECIL, JR., et al.

112 Ill. 180

1884 WL 9997 (Ill.)

THE ERIE AND PACIFIC DESPATCH

v.GEORGE CECIL, JR., et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. ROLLIN S. WILLIAMSON, Judge, presiding.

Messrs. WILLARD & DRIGGS, for the appellant.

Messrs. WALKER & CARTER, for the appellees.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

On the 15th of December, 1882, George Cecil, Jr., and William R. Anthony, the appellees, brought an action of assumpsit in the Superior Court of Cook county, against the appellant, the Erie and Pacific Despatch, an association of railway companies, for an alleged breach of a special contract, whereby, it is claimed, the defendant agreed to pay the plaintiffs a special rebate on certain shipments of freight made by them over the defendant's lines of road. The cause was tried before the court and a jury, resulting in a verdict and judgment for the plaintiffs for $8644.86, which judgment, on appeal, was affirmed by the Appellate Court for that district, and the defendant, by further appeal, brings the case here for review.

The declaration charges, in substance, that the plaintiffs, on the 15th of April, 1881, through their agent, John F. Morgan, made and entered into a contract with the defendant, a common carrier and association consisting of the New York, Lake Erie and Western Railroad Company, the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, the Indianapolis and St. Louis Railroad Company, and the Illinois Midland Railway Company, whereby the defendant agreed to furnish the plaintiffs a large number of cars, to-wit, two hundred and eighty-six, for the transportation of grain from Peoria, Illinois, to Jersey City, New Jersey, and upon completion of which service and labor defendant was to receive from plaintiffs the sum of twenty-two and a half cents per hundred pounds of grain so transported, it being further agreed that the defendant was to bill said grain to plaintiffs at the regular rates then current for similar service, which said regular rates plaintiffs were thereupon to pay to defendant, and defendant then and there promised the plaintiffs, upon their payment of such regular rates to the defendant, that it, the defendant, would forthwith repay to plaintiffs the difference between the said regular rates and the said sum of twenty-two and a half cents for each one hundred pounds of grain so transported as aforesaid. The declaration then proceeds, by appropriate averments, to show a performance of the contract on the part of the plaintiffs, and a breach by the defendant, in neglecting and refusing to repay to the plaintiffs the difference between the current rates and the contract price for the transportation of said grain, which is averred to be, in the aggregate, $8368.80.

The evidence, we think, tends to establish the material facts in the declaration, as above charged.

It is said by appellant's counsel, in the commencement of their written argument: “The only questions seriously controverted below, were, first, whether the appellant contracted or ratified a contract to repay to appellees the difference between the current rate and a rate of twenty-two and a half cents per hundred pounds, and if so, whether such contract, if made, was valid and binding on appellant. In the trial court both questions were determined in favor of appellees, and they had judgment for $8644.86. The Appellate Court having affirmed the judgment, the first of the two questions mentioned is, of course, eliminated, except so far as the same shall be found involved in the rulings of the trial court upon the admission and rejection of testimony, and the giving, refusing and modifying of instructions.” This statement of counsel we accept as correct, and as showing the true status of the case in this court. The second question thus referred to as having been settled adversely to appellant,--namely, whether the contract, assuming it to have been made, was valid and binding on the appellant,--being one of law, is, of course, open for reconsideration in this court, and as it goes to the very foundation of the action, it will be first disposed of.

The contract in question seems to be assailed mainly on the ground that if given effect it would lead to great abuses, and place associations like the defendant completely at the mercy of its agents. We think counsel entirely over-estimate the evils and inconveniences that are likely to result from sustaining a contract of this character. Most of the objections urged against this contract would apply with equal force to all contracts made by agents within the scope of their general powers, where they have transcended mere private instructions. To release the principal, in such cases, from responsibility, would be violative of one of the fundamental rules of the law of agency, and would seriously derange and unsettle the present system of conducting business through the agency of others. It is of the utmost consequence to the community that all servants and agents entrusted with the transaction of business in which the public are interested should be reliable and trustworthy, and the most effectual means of attaining this object is to hold those who have the selecting of them, responsible for their conduct while acting within the general scope of their authority.

But the question we are considering is not a new one in this court. Toledo, Wabash and Western Ry. Co. v. Elliott, 76 Ill. 67, like the present case, was an action to recover a rebate on freight paid by the shipper for the transportation of a lot of corn, under a special agreement. In that as in this case, the contract under which the shipment was made was assailed both on the ground it was illegal and that the agent had no authority to make it. In answer to these objections this court there said: “There was certainly an apparent authority in the local agent to contract for carrying the grain under some special arrangement. It seems quite certain, from all the evidence, the corn was shipped over defendant's road on the agreement the company would allow plaintiffs a rebate on the usual charges, and having availed itself of the benefits of the contract, the company ought not now to be permitted to repudiate it on the ground their agent had no authority to make it. * * * The contract was, to carry the grain at the customary rates. The rebate in the charges was matter of private agreement between the carriers and the shippers.” What was there said is equally applicable here, and under the authority of that case we must hold the agreement in this, valid and binding.

The contract in the present case was made, on behalf of the plaintiffs, by Morgan, at Peoria, Illinois, with Nash, the local agent of the Midland Railway Company, who assumed to act for and on behalf of the Erie and Pacific Despatch, though his authority to do so is denied by the appellant. Morgan having been introduced by plaintiffs as a witness, for the purpose of showing the agreement and circumstances under which the shipments of the grain were made, was asked this preliminary question: “With whom were the contracts for the shipment of this corn made?”--which the court permitted the witness to answer, against the specific objection of the defendant that the question assumed the existence of such contracts, without any evidence of the fact. While we recognize the general rule that a question should not be so framed as to assume the existence of a material fact of which there is no proof, particularly if the fact is a controverted one and the party testifying is what is known as a willing witness, yet the examination of witnesses is a matter so largely in the discretion of the judge who presides at the trial, that courts of review will not interpose except where it is apparent the complaining party may...