Wiggins v. Heim
| Citation | 75 N.E.2d 381,332 Ill.App. 403 |
| Decision Date | 03 November 1947 |
| Docket Number | Gen. No. 44124. |
| Parties | WIGGINS v. HEIM et al. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Cook, County; U. S. Schwartz, Judge.
Suit by R. B. Wiggins against William Heim, Jr., and others for an accounting. Decree for complainant, and defendants appeal.
Reversed and remanded.John V. Ryan, of Chicago (C. W. Armstrong, of Chicago, of counsel), for appellants.
Ben Copple, of Chicago (Clarence Threedy, of Chicago, of counsel), for appellee.
This is an appeal by defendant from a decree in a suit for accounting, directing defendant to account and reserving jurisdiction to refer the matter to a master as to the form of the accounting.
Plaintiff filed a complaint, alleging inter alia that on November 19, 1943, defendant, doing business as Service Machine Company, entered into a written contract with him, in which it was provided that plaintiff should secure for defendant orders for the machining of a certain base housing for the Lickheed Flap Actuator, assist in the procurement of the necessary tools incident to the production thereof, assist in the satisfactory prosecution of the work, and maintain harmony and good will between the contractor and Service Machine Company; that the compensation to be paid to plaintiff for his performance should be in the form of a salary based on the selling price of each part, in the sum of $1.00 for each furnished part and a prorated amount for each part partially finished; that this compensation shall not be termed a business broker's commission but a salary for maintaining good will and valuable services rendered; that the defendant agreed to accept the orders mentioned and begin the work immediately and use diligence to perform this work as rapidly as possible; that the agreement shall not terminate with the completion of any single purchase order for production work but shall continue with compensation to Wiggins on a pro-rated basis equal to the sum hereinbefore mentioned, for any future business obtained in accordance with the provisions set forth.
Thereafter, by leave of court another count at law was added to the complaint, which sought to recover the stipulated compensation on specific orders listed in said count 2.
Defendant by his answer interposed the defense (1) that the contract was against public policy; (2) that plaintiff procured no orders for defendant upon which he was entitled to any compensation; (3) that the contract was cancelled and a full and final settlement made by the payment to plaintiff of the sum of $5,046; (4) that said contract was null and void because defendant was compelled to enter into the written contract by business duress and compulsion. By way of counterclaim defendant sought to recover back the $5,046 paid under the contract for the same reasons set up in the answer.
An important procedural question, relating to pre-trial conference, is presented by this appeal.
It appears from the record that upon the hearing, the only evidence received on behalf of plaintiff was the written contract of November 19, 1943, and the stipulation by counsel that the purchase orders, as substantially set up in plaintiff's pleadings, were executed and payment therefor received by defendant. Defendant then proceeded with the offer of evidence to support his defenses. At the conclusion of the hearing, plaintiff's counsel moved for a finding for plaintiff and the entry of a decree. Defendant's counsel object to the entry of any decree without proof as to the performance of the contract by plaintiff. The Court then stated: ‘I think your decree should find that there was a pre-trial conference and at that conference it was agreed, as a matter of fact, that the defendant should proceed with the trial, with the presentation of his affirmative defenses, and his counterclaim, and after hearing his evidence on that, the court decided that he had not made his defense as set forth, and that thereupon, the court found for the plaintiff, and against the defendant, and also on the counterclaim.’ The record further discloses that a few days later counsel for plaintiff presented a decree, which contained the following recital: ‘* * * and the Court having held a pre-trial conference with the attorneys for plaintiff and defendant where it was agreed that inasmuch as plaintiff's contract sued upon was admitted by defendant, but that defendants answer set up affirmative matter and ...
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