Tumy v. Mayer

• Decision Date: 27 October 1919
• Docket Number: No. 12818.,12818.
• Citation: 124 N.E. 661,289 Ill. 458
• Parties: TUMY v. MAYER et al.
• Court: Illinois Supreme Court

289 Ill. 458

124 N.E. 661

TUMY

v.MAYER et al.

No. 12818.

Supreme Court of Illinois.

Oct. 27, 1919.

Appeal from First Branch, Appellate Court, First District, on Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.

Suit by M. I. Tumy against Carl H. Mayer and others, wherein the Gulbransen-Dickinson Company was subsequently made a defendant. From decree, defendant company appealed to the Appellate Court, which affirmed, and defendant company appeals. Judgment of the Appellate Court affirmed.

Edward B. Healy, of Chicago, for appellant.

King, Brown & Hurlbut, of Chicago, for appellee.

CARTWRIGHT, J.

On June 14, 1916, the appellee, M. I. Tumy, filed a bill of complaint in the circuit court of Cook county against Carl H. Mayer, Anna D. Mayer, his wife, and others, allegingthe recovery of a judgment against Carl H. Mayer in the municipal court of Chicago for $1,700 and costs, the return of an execution unsatisfied, ‘No property found,’ and that Mayer had fraudulently transferred property and effects to his wife, Anna D. Mayer. On October 10, 1916, the appellee filed a supplemental bill, making the appellant, the Gulbransen-Dickinson Company, a defendant, and alleging that it had become indebted to Mayer in the sum of $500, and would become further indebted on the fulfillment of a contract between it and Mayer whereby Mayer would become entitled to commissions upon merchandise sold in the future. Summons was issued and served on the appellant on October 13, 1916, and it filed its answer on April 30, 1917, denying that it had become indebted to Mayer, and alleging that it did not know whether it would or would not become indebted to him in the future upon the fulfillment of the contract. Interrogatories were answered, and the answer concluded with an averment that Carl H. Mayer was indebted to the appellant after giving him credit for all commissions to which he was entitled. There was a hearing of evidence before the chancellor, and the cause was referred to a master in chancery with directions to take and state an account of commissions earned by Mayer down to the date of the service of summons, and another account showing commissions earned under the contract from the service of summons to the date of filing the answer. The appellant removed the record to the Appellate Court for the First District by appeal, where the decree was affirmed and a certificate of importance and an appeal to this court were granted.

By the contract the appellant employed Carl M. Mayer to sell pianos, player pianos, and player actions for one year from June 16, 1916, to June 16, 1917, in certain specified territory, and agreed to pay him 5 per cent. on all accepted orders for merchandise sold by him direct to or received by mail from dealers whose purchasing offices were located in that territory. The appellant was to advance $35 per week for expenses as a drawing account, to be charged against the commissions, and Mayer was to pay his own expenses. The controversies in this court relate to the right to subject to the payment of the judgment commissions on orders received by mail from dealers, and commissions earned after the filing of the bill up...