Vogel v. Pekoc

• Decision Date: 15 June 1895
• Citation: 42 N.E. 386,157 Ill. 339
• Parties: VOGEL et al. v. PEKOC.
• Court: Illinois Supreme Court

157 Ill. 339

42 N.E. 386

VOGEL et al.

v.PEKOC.¹

Supreme Court of Illinois.

June 15, 1895.

Appeal from superior court, Cook county; John Barton Payne, Judge.

Assumpsit by John Pekoc against Nelson Morris, Frank E. Vogel, and Edward Morris. Plaintiff obtained judgment. Defendant Vogel appeals. Affirmed.

Magruder, J., dissenting.

Dupee, Judah & Willard, for appellant.

Olson, Frazier & Bantle, for appellee.

CRAIG, C. J.

This was an action originally brought before a justice of the peace by John Pekoc against Nelson Morris, Frank E. Vogel, and Edward Morris, a firm doing business as Nelson Morris & Co., to recover the sum of $25 for wages claimed to be due as a cooper. On a trial before the justice the plaintiff recovered the amount claimed, and the defendant appealed to the superior court of Cook county, where a jury was waived, and a trial had before the court, resulting in a judgment for the amount sued for, and also attorney's fees. To reverse this latter judgment the defendant has appealed to this court.

The defendant requested the court to hold the following propositions of law, but the court refused so to hold, and the ruling is relied upon as error: (1) That the evidence in the case is not sufficient in law to sustain a finding for the plaintiff; (2) that the act providing for attorney's fees in suits for wages, approved June 1, and in force July 1, 1889, is unconstitutional and void; (3) that the evidence in the case does not show a suit for wages within the meaning of said act, and that no attorney's fees can be allowed thereunder.

The evidence shows that plaintiff worked as a cooper for Nelson Morris & Co., and that there was a balance in their hands, for wages unpaid, of $25. The defendants, however, claim that the amount claimed to be due was forfeited, for the reason that plaintiff quit the services of defendants without giving two weeks' notice, as they claim he was required to do under a contract in writing, which they put in evidence, as follows: ‘This agreement, made and signed this 12th day of September, 1892, between Fairbank Canning Company and Nelson Morris & Co., the parties of the first part, and John Pekoc, the party of the second part, witnesseth: The said parties of the first part agree to employ the said party of the second part to perform such work as they may assign to him from time to time, such service to continue only so long as satisfactory to the said parties of the first part. And in consideration of such employment, and the peculiar nature of the business of the said first parties, and of the wages to be paid by the party of the first part, the said second party agrees that he will not quit said service and employment without giving two weeks' notice in writing to said first parties of his intention so to do, and as a guaranty for the faithful performance of this agreement on his part the said party of the second part agrees to deposit with said first parties the sum of $25; and in case of the violation of this agreement by said second party the said first parties shall retain said amount as liquidated damages, and in satisfaction and payment of all damages by them sustained. It is further agreed that said first parties shall retain $2.50 per week of the wages earned by said second party until said sum of $25 shall be in their hands, to be held by them according to the terms of this agreement. John Pekoc. [Seal.] _____. [Seal.] _____. [Seal.]’ On the other hand, the plaintiff insists that the contract is void for the want of mutuality. It will be observed that the written contract was not signed by the parties named therein as parties of the first part, and it is insisted by the plaintiff that, as they failed to sign the contract, it never became binding on him or any other person. The acceptance of the contract by the parties of the first part, and holding it and acting upon it as a valid instrument, may be regarded as equivalent to its formal execution on their part, as held in Johnson v. Dodge, 17 Ill. 442;Short v. Kieffer, 142 Ill. 266, 31 N. E. 427.

Treating the contract in the same way it would be treated if it had been signed by the persons named as parties of the first part, the next question to be determined is whether the contract is mutual. It is a general rule, well understood, that a contract between parties must be mutual. Weaver v. Weaver, 109 Ill. 233; Chit. Cont. 15; Bish. Cont. § 78, p. 32; Tucker v. Woods, 12 Johns. 190. In the case last cited it is said: ‘In contracts where the promise of the one party is the consideration for the promise of the other, promises must be concurrent and obligatory upon both at the same time.’ 1 Chit. Cont. 297; Delamater v. Borland, 1 Caines, 594. In Chit. Cont., supra, the author says: ‘The agreement, as before observed, must, in general, be obligatory upon both parties. There are several cases satisfactorily establishing that if the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality.’ In 1 Whart. Cont. p. 2, the author says: ‘The parties to a contract must both be bound. If one promise in consideration of the promise of the other, the one is not bound unless the other is bound. Promise to do a thing on an executed consideration is not a contract; nor is a promise to do a thing in consideration of an illegal or impossible engagement on the other side. Without this reciprocal obligation, no contract can be constituted.’ ‘It is a general principle,’ says Mr. Fry, ‘that when from personal incapacity, the nature of the contract, or any other cause, a contract is incapable of being enforced against one party, this party is equally incapable of enforcing it specifically against the other party, although its execution in the latter way might, in itself, be free from difficulty attending its execution in the former.’ Spec. Perf. p. 214, § 440.

Upon looking into the contract read in evidence, it will be found that the parties of the first part practically agree to do nothing. There is mutually no obligation imposed upon them by the contract. The only portion of the contract claimed to impose any obligation on parties of first part is the following: ‘The said parties of the first part agree to employ the said party of the second part to perform such work as they may assign to him from time to time, such service to continue only so long as satisfactory to the said parties of the first part.’ What obligation does this impose? When are they to employ the party of the second part? What sum are they to pay him? How long is the employment to continue? Suppose they refuse to employ the party of the second part, can an action for damages be maintained for a breach of the contract? The answer to these enigmas is obvious. We think it is plain that the parties of the first part were not bound under the terms of the contract to employ the party of the second part for a single day or hour, and, if they had, absolutely refused to employ him, he was without remedy in any court of the country. It may be true that the plaintiff might have entered into a contract which would require him to give two weeks' notice before he could quit the service of his employer without being liable to respond in damages as might reasonably be provided in the contract, but no such case is presented by the record. Here the contract implies no obligation on one of the parties, and hence it is void for the want of mutuality. The contract being void, it will not be necessary to inquire whether the amount which it was provided might be retained was a penalty or liquidated damages.

It is next claimed that the court erred in allowing attorney's fees. This involves a construction of an act of June 1, 1889 (Laws 1889, p. 362), which in substance provides ‘that whenever a mechanic, artisan miner, laborer or servant or employé shall have cause to bring suit for wages, * * * and shall establish by the decision of the court or jury that the amount * * * is justly due and owing, and that demand has been made in writing,’ etc., then it shall be the duty of the court to allow the plaintiff, when the foregoing facts appear, a reasonable attorney's fee in addition to the wages. It is claimed that the statute is private or special legislation, and hence is in conflict with that provision of the constitution prohibiting special legislation. It is true, this statute does not provide that all persons who may recover judgments may at the same time recover attorney fees, but the recovery is restricted to a designated class of persons, and legislation of this character has never been regarded obnoxious to the constitution. Indeed, in Hawthorn v. People, 109 Ill. 303, it was expressly held that a statute is not obnoxious to the constitutional objection that it is not a general law because it applies to a class of persons. It is a general law if it applies to all persons in the state similarly engaged. See, also, Potwin v. Johnson, 108 Ill. 70, where the same doctrine is announced. The statute in question confers the right to recover attorney fees upon a certain class of persons who bring actions to recover for wages. All persons who bring such actions fall within its provisions, and hence it is in no sense special legislation. We think the judgment of the superior court upon the facts as they appear in the record correct, and it will be affirmed. Affirmed.

On Rehearing.

(Oct. 28, 1895.)

PER CURIAM.

The petition for rehearing filed in this cause greatly emphasizes the previous contention that the act of 1889, providing that a reasonable attorney's fee shall be allowed to successful plaintiffs in suits for wages, to be taxed as costs, is a partial and special statute, working deprivation of property without due process of law, and therefore unconstitutional. Reliance is placed in Millett v. People, 117 Ill. 294, 7 N. E. 631;Frorer v. People, 141 Ill. 171, 31 N. E. 395;Ramsey...