The Ill. Linen Co. v. Hough

• Decision Date: 30 September 1878
• Parties: THE ILLINOIS LINEN COMPANYv.ROSELLE M. HOUGH.
• Court: Illinois Supreme Court

91 Ill. 63

1878 WL 10230 (Ill.)

THE ILLINOIS LINEN COMPANY

v.ROSELLE M. HOUGH.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Du Page county; the Hon. H. H. CODY, Judge, presiding.

Mr. WILLIAM E. LEFFINGWELL, for the appellant.

Messrs. E. N. & N. E. GARY, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action of assumpsit upon the common counts, by Roselle M. Hough against The Illinois Linen Company, resulting in a verdict and judgment for the plaintiff for $15,000. The defendant appealed, and assigns for error the giving and refusing of instructions, and that the verdict is not supported by the evidence.

The plaintiff's claim was of the amount of $25,000, embracing various items of account. One item was 809 tons of flax fibre, $10--$8090. Touching this, the court below, on the part of the plaintiff, instructed the jury, in substance, that if the minds of the plaintiff and one Crane, acting for the linen company, did not meet upon the price to be paid for the flax straw in question, and that the plaintiff had, at all times, understood and believed that the company agreed to give him $10 per ton for such straw, and that the defendant company understood that the price they agreed to give for the straw was $3.50 per ton, then there was no contract for the price of the straw made between the parties, and the plaintiff would be entitled to recover what the evidence showed the price of the straw to be reasonably worth.

Under the evidence in the case, we regard this instruction erroneous. That there was a contract for this straw, and that a price was agreed upon, is asserted by both parties. The witnesses on the one side say it was $10 per ton, those on the other side $3.50. The only question arising was, what was that price which was agreed upon. This the jury should have determined upon the weighing of the testimony and passing upon the credibility of the witnesses. Because there was contradictory evidence upon the point, the jury should not have been encouraged, as they were here, by instruction from the court, to decline the more difficult task of a determination upon conflicting testimony of what the contract price was, and adopt the easier mode of saying what was a reasonable price. We can see nothing in the evidence which was calculated to create anything of mistake or misapprehension of what the contract price was, thus leaving the question entirely one of the credibility of witnesses.

The fifth instruction on the part of the plaintiff, with reference to the amount of flax straw delivered, was faulty, under repeated decisions of this court, in calling attention to particulars of testimony on that subject on the side of the plaintiff, and omitting any reference to defendant's testimony on the point. The eleventh instruction for the plaintiff, on this point, was the proper one, and the only one plaintiff was entitled to in this regard, with the exception that the last clause of it was wrong, in being suggestive of the number of tons delivered.

Another item of charge was for services,--$5000. During the time of these services, some fourteen months, plaintiff was the president of the company. Upon this head there was given, on the part of the plaintiff, this instruction:

“6. Although the jury may believe, from the evidence, that the plaintiff was not to receive any compensation as president of the company, yet if they further believe, from the evidence, the plaintiff, with the knowledge and consent, and at the request of the defendant, performed other and different services for the company than were required of him as such president, and such as did not properly pertain to said office, then the plaintiff has the same right to recover for such extra services so rendered by him (if such are shown, by the evidence, to have been performed,) as though he was not, at said time, president of said company; hence, if the jury believe, from the evidence, that the plaintiff, with the knowledge of the defendant, rendered services for the company to the value of $5,000, or any other sum, and that such services were outside of and not included in his duties as president, then the jury, in making up their verdict, should allow the plaintiff for such extra services, if any have been proven, to the amount of $5000, or any other sum which the proof shows such services to have been worth.”

The by-laws of the company provided, that the officers should receive such compensation for their services as should be determined at the annual stockholders' meeting, or at any special meeting called for that purpose. Plaintiff admits that no compensation was ever thus fixed. Mr. Crane, the largest stockholder at the time, and the treasurer of the company, testifies that it was agreed between plaintiff and himself and the other officers and directors of the company, that the president, secretary and treasurer should not have any salary; that the superintendent was to be paid, the by-laws requiring he should devote all his time to the interests of the company; that the other stockholders besides himself were the plaintiff, Wilber and Smith,-- that they were all directors, and Smith the superintendent; that the witness performed many services outside of his duties as treasurer, and never received any salary for his services or made any charge...