Union Sur. & Guar. Co. v. Tenney

Citation65 N.E. 688,200 Ill. 349
PartiesUNION SURETY & GUARANTY CO. v. TENNEY et al.
Decision Date16 December 1902
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Appeal from appellate court, First district.

Action by Horace K. Tenney and others against Union Surety & Guaranty Company. From a judgment in favor of plaintiffs, affirmed by the appellate court (102 Ill. App. 95), defendant appeals. Affirmed.Charles B. Obermeyer, for appellant.

James H. Wilkerson (Edwin M. Ashcraft, of counsel), for appellees.

This is an action of assumpsit on the common counts by the appellees, constituting a firm of attorneys in Chicago, to recover for retainer and legal services. The appellant filed with its plea of nonassumpsit an affidavit that it had a good defense on the merits to all of the plaintiffs' demand except $150 thereof.

The appellant was a surety company organized under the laws of Pennsylvania, and was desirous of doing business in this state by securing the necessary state license and appointing an agent and legal advisers. Beginning with June, 1899, there was a series of consultations and letters between members of the appellee firm of attorneys and appellant's officers, most of the correspondence being carried on by the vice president of the appellant company. In the course of these negotiations, S. P. McConnell, one of the appellees, wrote to appellant that they would require that appellant advance to them for a retainer and on account of services the sum of $1,000. After the exchange of several letters on the subject, appellant finally wrote that the matter had been considered by the executive committee, and that it was perfectly willing to advance the fee of $1,000 suggested. At the instance of appellant a contract between appellant and one Perry H. Smith, whom appellees had secured for appellant to act as its agent in Chicago, was drafted by appellees and sent to appellant. This contract, after having been considered by appellant's executive committee, was modified by appellant in some respects, and then executed in duplicate by it, and returned to appellees to be executed by Smith. Smith then signed the contracts, and one of them was returned to appellant. This contract provided, among other things: ‘Third. It is further understood and agreed between the parties hereto that the law firm of Tenney, McConnell, Coffeen & Harding, of Chicago, shall be retained as general counsel and attorneys for said the Union Surety and Guaranty Company in and for the state of Illinois, their services and expenses to be paid from the commissions hereinbefore specified. A retainer of $1,000 shall be paid said law firm at once, and deducted from the advance on commissions at the rate of $100 per month.’

More correspondence ensued between the parties in the matter of preparing the papers necessary for filing with the state officers to enable appellant to do business in this state, some of the letters passing through the hands of appellant's legal adviser in New York. Accompanying one of the letters to appellant-that of December 20, 1899-was a bill of appellees of $1,000 for ‘retainer as agreed.’ December 30, 1899, appellant, by its vice president, wrote to appellees: ‘The check for your fee will be mailed as soon as the treasurer returns from Philadelphia, which will be Tuesday next. The awkwardness of having but one signature to a check known in the bank is exemplified in this case.’ January 3, 1900, appellant again wrote to appellees-this time by its secretary-that their bill for $1,000 as a retainer would receive immediate attention as soon as it was advised that the company had been authorized to do business in Chicago. The papers that had been sent to the insurance department at Springfield were afterwards returned to appellant, at its own request, for correction. Appellant took no further steps, but apparently abandoned the matter. To further requests for payment of the retainer, evasive answers were returned or none at all. March 4, 1901, appellant secured a release from Smith of all his claims against it under and by virtue of the contract above mentioned.

At the close of appellees' evidence, and again at the close of all the evidence, appellant moved the court to instruct the jury to find the issues for the appellant, which motion was denied and the instruction refused. The court then, at the instance of app...

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13 cases
  • Simon v. Chicago, Milwaukee & St. Paul Railway Co.
    • United States
    • United States State Supreme Court of North Dakota
    • 1 Marzo 1920
    ......New York. State Bank, 121 F. 202; Union Surety Co. v. Tenney, 102 Ill.App. 95, 65 N.E. 688; French v. ......
  • Studebaker Corporation of America v. Hanson
    • United States
    • United States State Supreme Court of Wyoming
    • 17 Mayo 1916
    ......v. Stovk, 51 S.E. 161,. 104 V. 97; Union Surety & Guaranty Co. v. Tenney, 65. N.E. 688, 200 Ill. 349; Seibert's ......
  • Dowling v. Chicago Options Associates, Inc.
    • United States
    • Supreme Court of Illinois
    • 3 Mayo 2007
    ......An early case, Union Surety & Guaranty Co. v. Tenney, 200 Ill. 349, 65 N.E. 688 (1902), dealt ......
  • American Vulcanized Fibre Company v. Saulsbury
    • United States
    • United States State Supreme Court of Delaware
    • 15 Junio 1915
    ...... the law. Blair v. Columbian Fireproofing Co., 191. Mass. 333; Union Surety Co. v. Tenney, 200 Ill. 349,. 65 N.E. 688; Knight v. Russ, 77 Cal. ......
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