Braun v. S. F. Hess & Co.
58 N.E. 371
Ill.
1900
Check Treatment
Mr. Justice Hand

delivered the opinion of the court:

This is аn action of assumpsit, brought by appellee, a corporation doing business in Rochester, New York, to recover a balance claimed to be due it on an open account fоr cigarettes and tobacco sold and delivered to William H. Heegaard, of whose will the appellants are executors. The declaration contains the common counts only, and thе pleas/ are the general issue and set-off. The first trial resulted in a verdict and judgment against appellee for $286.86, which, on appeal to the Appellate Court, was reversed and the cause remanded. (54 Ill. App. 227.) On the second trial the court instructed the jury to find the issues for the plaintiff and to assess the plaintiff’s damag-es at the sum of $903.08, with interest thereon at the rate of five per cent per annum from October 26, 1890, to the day of trial, which resulted in a verdict and judgment in favor of appellee for the sum of $1260.49. This judgment was affirmed by the Branch Appellate Court for the First District, and the present appeal is prosécuted from such judgment of affirmance.

It is first contended by appellants that the court erred in peremptorily instructing the jury to find for the plaintiff. As we understand the evidence of Mr. Heegaard, as аbstracted, the goods sued for by appellee had all been received by him; that ‍‌‌‌​​​‌‌​‌‌‌‌​‌‌​​​‌‌‌‌‌​‌‌‌​‌​‌​​​​‌‌‌​‌​​​‌‌‌‌‍the purchase price thereof was $914.03, from which should be deducted $10.95 freight 'paid by him, which left $903.08 due the plaintiff. We think it cаn fairly be said from the evidence there was no dispute as to the amount of appellee’s claim.

It is further contended the court erred in instructing the jury to allow appellee interest on its claim from October 26, 1890, to the date of trial. At the head of each invoice sent by appellee to Heegaard at the time the goods were shipped, appear the following: “Bills beаr interest after maturity, and are subject to sight draft;” also the words, “Terms sixty days, two per cent discount for cash within ten days.” The date of the last bill was August 26, 1890. The goods were shipped by appellee and reсeived by Heegaard upon the terms stated in the invoices, which constituted, under the circumstances, a contract to pay interest. The case of Lambeth Rope Co. v. Brigham, 170 Mass. 518, which was an aсtion to recover the price of goods sold, is an authority directly in point. The court, on page 522, say: “It appeared that the plaintiff was accustomed, when it sent the g'oods, to send a bill оf them, on the face of which were the words, ‘Terms thirty days. ’ The judge instructed the jury as follows: ‘How, if all of those bills for these goods were in this form, terms stated at thirty days, and the party took the goods with that upon it and made no objection to that in any way, it would be an implied agreement that that was the time within which the goods were to be paid for, and that if they were not paid for, after that time interest would begin to run by wаy of damages from the expiration of thirty days. ’ There is no evidence of any express agreement in regard to the time when the goods should be paid for nor in regard to the time when interest should begin tо run. We are of the opinion that the instruction was correct. In the absence of any agreement the price of the goods would be payable on delivery. The parties could make any agreement about it that they chose to make. If the plaintiff notified the defendant that it was willing to give him a credit of thirty days on each bill and that the price would be payable at the expiration of that time, it was a proposition in the defendant’s favor, and if he made no objection his assent would be implied, and he would be bound by the contract.”

We think that the court did not err in instructing the jury to find for appellee, ‍‌‌‌​​​‌‌​‌‌‌‌​‌‌​​​‌‌‌‌‌​‌‌‌​‌​‌​​​​‌‌‌​‌​​​‌‌‌‌‍unless the defense set up in the plea of set-off was sustained.

The plea of set-off filed by defendant alleg'ed that, before plaintiff’s cause of action accrued, defеndant was purchasing cigarettes from the American Tobacco Company, and was receiving a rebate thereon of thirty cents a thousand in consideration that defendant would not sell cigаrettes manufactured by any other person; that in consideration that defendant would purchase of plaintiff certain cigaréttes manufactured and sold by plaintiff, known as “Creoles” and “Diadems,” plаintiff promised the defendant to indemnify and save him harmless against and from any loss of rebates from the American Tobacco Company on account of handling plaintiff’s cigarettes; that defendаnt, relying upon such promise, and upon the sole consideration thereof, bought of plaintiff a large number of cigarettes and paid plaintiff large sums of money therefor; that defendant also bоught from said American Tobacco Company a»large number of its cigarettes and paid it large sums of money therefor, and by reason of making the aforesaid promises with the plaintiff, and by reason of selling and handling the plaintiff’s cigarettes, defendant lost large sums of money from the American Tobacco Company, to-wit, the sum of thirty cents per thousand on all the cigarettes of the Americаn Tobacco Company, sold by defendant, which sums the plaintiff refused to pay to defendant, etc., to the damag'e of the defendant of $1500, etc. To sustain the defense set up in said plea the dеfendant introduced in evidence the following memoranda or agreements:

“51 Wabash Ave., Chicago, III., May 26,1890. “Mess. W. H. Heegaard & Co., City:
“Gentlemen—We will guarantee you from any loss of rebates from the Americаn ‍‌‌‌​​​‌‌​‌‌‌‌​‌‌​​​‌‌‌‌‌​‌‌‌​‌​‌​​​​‌‌‌​‌​​​‌‌‌‌‍Tobacco Co. on account of handling Creole and Diadem cigarettes.
“Yours truly, J. E. Avery,
Gen’l Agt. S. F. Hess & Co.”
“Chicago, May 28, 1890.
“Mess. W. H. Heegaard & Co., City:
“Gentlemen—We, in consideration of your handling our cigarettes, guarantee that you will receive the rebate of 30c pr. M on all cigarettes you handle manufactured by the Amer. Tob. Co. or its branches, from April 1, 1890, until April 1,1891.
“Yours truly, J. E. Avery,
Gen'l Agt. S. F. Hess & Co., Rochester, N. 7.”

The controlling question in this case is, did the evidence show that J. E. Avery had authority to execute said mеmoranda or agreements, and thereby bind appellee? The law is well settled in this State (Powers v. Briggs, 79 Ill. 493; McNeil v. Shober & Carqueville Lithographing Co. 144 id. 238; Frankland v. Johnson, 147 id. 520;) that these agreements on their ‍‌‌‌​​​‌‌​‌‌‌‌​‌‌​​​‌‌‌‌‌​‌‌‌​‌​‌​​​​‌‌‌​‌​​​‌‌‌‌‍face are the individual obligations of J. E. Avery, and not of appellee. The words, “Gen’l Agt. S. F. Hess & Co.,” following the signature of J. E. Avery, are mere descriptio personae. The burden of proof was upon the defense to show аuthority on the part of Avery to execute said memoranda or agreements. There is no pretense that any proof whatever was offered of express authority from the appellee to Avery to execute the particular memoranda or agreements offered in evidence. There was, therefore, an entire absence of proof of such authority, unless it can be said that the proof shows that J. E. Avery was the general agent of the appellee, and therefore had implied authority to bind appellee by such memoranda or agreements. Conceding such general agency was established, such authority, in our judgment, is not implied as a matter of law. The appellee having made a clear case, and the defense having failed for want of proof tending to establish a fact material and necessary thereto, the instruction directing a verdict for the appellee was proper. . ,

The case of Kinser v. Calumet Fire Clay Co. 165 Ill. 505, is upon the facts very much like the casе at bar, and, we think, decisive thereof. On page 508 we say: “It is clear that the evidence introduced on behalf of the plaintiff entitled it to the judgment rendered, unless the defense set up in the plea оf set-off was sustained. It is not claimed that any proof whatever was offered of express authority from the plaintiff £o Hartford to enter into a contract like that set up in the plea. There wаs therefore an entire absence of proof of such authority, unless it can be said that, being the agent of the company to sell its sewer-pipe, authority to bind it by his agreement that a purchaser should lose nothing upon a contract is implied,—and such is clearly not the law. (Toledo, Wabash and Western Railway Co. v. Elliott, 76 Ill. 67; Cooley v. Perrine, 41 N. J. L. 322; Story on Agency,—9th ed.—sec. 170.) If, then, what was said between thе parties, as detailed by the defendant, amounted to a contract on behalf of the plaintiyff to re-pay the defendant all money, which he might lose on the Anderson contract, (which is certainly very doubtful,) ‍‌‌‌​​​‌‌​‌‌‌‌​‌‌​​​‌‌‌‌‌​‌‌‌​‌​‌​​​​‌‌‌​‌​​​‌‌‌‌‍the plaintiff is not bound thereby, because no authority to make it was shown. The plaintiff having made a clear case, and the defense wholly failing for want of proof tending to establish a fact material and necessary thereto, the court was justified in peremptorily instructing the jury to find for the plaintiff.”

We are of the opinion that the circuit court did not err in refusing to allow the defense to introduce proof showing a custom of agents of cigarette manufacturers to make contracts for rebates in the city of Chicago at about the time the memoranda or agreements оffered in evidence bear date, as the testimony of Mr. Heegaard shows he did not rely upon a custom at the time the memoranda of agreements offered in evidence were made, but that hе relied upon the statement of Avery that he had obtained authority from his principal to make such contract. Before the contract was made, as appears from Mr. Heegaard’s tеstimony, Avery, in effect, informed him he had no authority to make such agreement, but that he would consult his principal in Rochester, where he expected to go in a short time; that no contract was mаde until his return from Rochester, when he informed Heegaard it was all rig'ht, and gave him the memoranda or agreements offered in evidence.

We are of the opinion tj^ere is no reversible error in this record, and that the judgment should be affirmed.

Judgment affirmed.