Wilcox v. Dodge

• Decision Date: 31 October 1882
• Citation: 12 Bradw. 517,12 Ill.App. 517
• Parties: MINOT I. WILCOX ET AL.v.NORRIS G. DODGE ET AL.
• Court: United States Appellate Court of Illinois

12 Ill.App. 517

12 Bradw. 517

MINOT I. WILCOX ET AL.

v.NORRIS G. DODGE ET AL.

Appellate Court of Illinois, First District.

October Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. ELLIOTT ANTHONY, Judge, presiding. Opinion filed January 30, 1883.

This action was brought by Dodge and Petree, plaintiffs, against Minot I. Wilcox, Hosea T. Stock, Fred Toms and Charles Magee, defendants, as partners and joint covenantors or payors, to recover of them the stipulated compensation for certain dredging, etc., performed by them under the following contract in writing, described as having been made by all the defendants: “This agreement made this 5th day of October, 1881, between Dodge and Petree, of Little Falls, Herkimer county, New York, parties of the first part, and Frederick Toms and Charles Magee, of Ottawa, Ontario, and Wilcox and Stock, of Toledo, Ohio, co-partners under the firm name of Toms & Co., in South Chicago, parties of the second part.

The said Dodge and Petree hereby agree to hire to the said Toms & Co., their dredge and two dump scows, and furnish men and fuel to work the same, for the sum of eighty (80) dollars per day of eleven hours, and at the rate of $7.27 per hour for all extra time worked over eleven hours per day; the work to be done with said dredge and scows at such place or places in South Chicago, as said Toms & Co. may direct, upon the property of the South Chicago Dock Company.

This contract is for the term of one hundred days of eleven hours; and the said Toms & Co. agree to furnish employment for said dredge for the said term of one hundred days at the above price. The said Toms & Co. agree to pay said Dodge and Petree for said work on the 10th day of each month, for all work done in the previous month. In witness whereof the parties to this agreement have hereunto set their hands and seals, this 6th day of October, 1881.

+-------------------------+
                ¦DODGE & PETREE. ¦[L. S.] ¦
                +----------------+--------¦
                ¦TOMS & CO.      ¦[L. S.]”¦
                +-------------------------+
                

The above agreement was specifically declared upon, with the averment that it was made by the defendants as partners, in one count, in another that they made it jointly. The defendants Wilcox and Stock, who alone were served, filed the general issue, also a plea duly verified, denying the co-partnership and joint liability. On the trial it appeared that said agreement was executed by Toms in the absence of all the other defendants. The plaintiffs gave testimony tending to show a prior parol assent on the part of Stock, to the making of the agreement by Toms; also of acts and declarations on the part of both Wilcox and Stock tending to show a subsequent ratification and recognition by them, of it. But there was no evidence tending to show any previous assent thereto on the part of Magee or Wilcox, nor tending to show any subsequent ratification thereof by Magee. The plaintiffs also gave evidence tending to show by acts and declarations that the defendants, Wilcox and Stock, were co-partners with Toms and Magee, in respect to the matter of dredging for the South Chicago Dock Company. The above agreement was admitted in evidence against the objection of the defendants, Wilcox and Stock.

The said defendants, in order to show the relation existing between them and Toms and Magee, at the time of the execution of the foregoing agreement, gave in evidence the following agreement entered into between all of said parties, in the month of May, previous to the contract sued on:

“Whereas, by agreement in writing, dated April 7, 1881, between the South Chicago Dock Company on the one part, and Frederick Toms and Charles Magee, partners, under the name of Toms & Co., and Philip H. Decker, on the other part, the said Toms & Co., and Decker agreed, for certain moneys to be paid them by said Dock Company, to do certain dredging and docking, to wit: Toms & Co. to do the dredging, and Decker the docking, on the Calumet river, in the county of Cook and State of Illinois, for said Dock Company;

And whereas, also, by a subsequent agreement dated…. 1881,........., between said Dock Company, said Toms & Co., Decker, and the firm of Wilcox & Stock, composed of Minot I. Wilcox and Hosea T. Stock, and with the assent of certain other parties, sureties for said Toms & Co., it was stipulated on the part of the Dock Company, that in case said Toms & Co. should enter into a contract with Wilcox and Stock touching said work of dredging, said Dock Company would assent to such subletting of said work, and would pay said Wilcox and Stock, instead of the said Toms & Co. ninety (90) per cent. of the monthly estimates for the same, as provided in the first contract above described.

Now, therefore, it is agreed between the said Toms & Co. and the said Wilcox and Stock, that the said Wilcox and Stock will do all the dredging provided for in the last named contract with the South Chicago Dock Company upon the terms following, to wit:

The said Wilcox and Stock shall furnish at Toledo, Ohio, necessary dredging machines, not less than three, to do the said work. These dredging machines shall be valued at their cash value at Toledo before their removal, and the expense of fitting the same for removal to the said Calumet river, or the place where said work is to be done, and the towage and all other expense of so moving the same shall be borne equally by said parties; that is, said Toms & Co. shall bear one half and the said Wilcox and Stock one half; and in case, after the completion of the work, it shall be found necessary to return the said dredging machines to Toledo, the expense of so returning the same shall be borne by the said parties in the same proportion. The said Toms & Co. shall furnish all the money necessary to carry on the said work until estimates are made under said first contract, and any additional money required to carry on said work to completion, and the said Wilcox and Stock shall be paid for doing the said dredging as follows, to wit:

They shall be allowed and paid by said parties jointly from the proceeds of the said work, a sum equal to ten per centum per annum, upon the valuation of the said dredging machines at Toledo, for the time that the said machines are employed in being removed from Toledo to said work as aforesaid, and in doing the same, and in being returned to Toledo, if they shall be so returned.

After the completion of the said dredging, the net profits of doing the same, after paying for the use of said dredging machines, as aforesaid, and all other expenses, shall be equally divided between the said parties, one half to said Wilcox and Stock, and one half to the said Toms & Co.

It is further agreed by the said parties, that the 90 per centum of all estimates made and paid by said South Chicago Dock Company, as provided in the said contract with them, shall be paid to the said Wilcox and Stock, but the said Wilcox and Stock, out of the same, shall pay what is necessary to carry on the said work, so far as said per centum shall be required for that purpose.

It is further agreed that all risk of loss by transporting said dredging machines from Toledo to said work, and the return thereof to Toledo, if required, shall be equally upon these contracting parties, and all losses consequent thereon shall be equally paid by each, and all breakages and repairs of said dredging machines, either in transportation or during the progress of said work, shall be paid equally by each of these contracting parties.

It is further agreed that if any default shall be made in carrying out the said first named contract with the South Chicago Dock Company, whereby any damages or forfeitures shall occur that the same shall fall upon the said Toms & Co., and not upon the said Wilcox and Stock; and that said Wilcox and Stock do not assume any liability whatever to fulfill the said contract with the said Dock Company, except as to doing the said dredging, and that they do not assume to do it in the time provided for in said contract, and if any loss happens on account thereof, it shall fall upon the said Toms & Co.

It is further agreed that neither of the partners of the said Toms & Co. or the said Wilcox and Stock shall be allowed or paid anything as between themselves, for their personal services or expenses in attending to or supervising the said work of dredging; and if either of said firms, or either members of either of them, shall hereafter, before the completion of the work by this agreement provided for, obtain any contract for similar work upon the said Calumet river, or in the vicinity, it is agreed that said contract so obtained shall be performed under the terms of this agreement.

A valuation of the following dredging machines at Toledo, as provided in this contract, has been made as follows, to wit:

+-----------------------+
                ¦Dredge Toledo  ¦$10,000¦
                +---------------+-------¦
                ¦Dredge Goodwin ¦7,000  ¦
                +---------------+-------¦
                ¦Clam Dredge    ¦3,000  ¦
                +-----------------------+
                

And it is stipulated that this shall be the valuation of said dredging machines if they are used in carrying out said contract; and if any other dredging machines shall be used, and the valuation, before they leave Toledo, can not be agreed upon by the parties there before leaving, said valuation shall be left to two persons, one to be chosen by each of said parties, and if they can not agree, it shall be left to an umpire, to be chosen by those two.

In witness whereof we have hereunto signed this agreement this ______ day of May, A. D. 1881.

M. I. WILCOX,

H. T. STOCK,

F. TOMS,

CHAS. MAGEE.”

The evidence conclusively shows that the dredge and scows and men were furnished, and the work sued for was done, under and in performance, on the part of the plaintiffs, of said first mentioned agreement. There was no attempt to recover upon a quantum meruit, although the common counts were included in the declaration.

The court, among...