| Ill. | Oct 23, 1907
delivered the opinion of the court:
The appellee gave testimony tending to show a contract to secure the options for the 2319.80 acres at a price for his services to be fixed by appellee. He also testified to another conversation with the president of appellant tending to show an agreement to pay him $5 per acre. The appellant’s evidence tended to show an agreement for fifty cents per acre. These conversations were between appellee and E. C. Donk, the president of appellant. Their accounts of the conversations differed very materially and anything affecting the credibility of either was important, for the jury were compelled to base their verdict chiefly on the testimony of these two witnesses.
The court permitted appellee’s wife to testify, over appellant’s objection, to a conversation with Mr. Donk tending to show a promise to pay the appellee $5 per acre for securing these options. The statute makes the wife competent to testify for or against her husband “in all matters of business transactions where the transaction was had and conducted by such married woman as the agent of her husband.” But in this case no transaction was had and conducted by Mrs. Stroetter. She testified that her husband sent her to Mr. Donk’s office, and she had this conversation with Mr. Donk as the agent of her husband. But she conducted no business. To malee a wife a competent witness under this clause it should appear that she was authorized by her husband to conduct some business transaction for him which she did conduct, and then she may testify. It was error to overrule the defendant’s objection to her testimony. It is true the jury did not find in favor of the plaintiff for the $5 per acre he claimed, but neither did they find in favor of the fifty cents per acre which the defendant claimed. Their finding was necessarily dependent largely on the credit of these two witnesses. If Mr. Donk’s credit had not been attacked by Mrs. Stroetter’s testimony to an inconsistent statement out of court, we cannot know that the jury would not have accepted his version of the conversations with Mr. Stroetter and found the commission was to be only fifty cents instead of fixing it at $1.50 per acre. Where a clear error appears which may have influenced the verdict, an appellate court must reverse the judgment.
The evidence as to the value of the coal lands was competent as bearing upon the value of appellee’s services. If appellee’s compensation was to be fixed by himself, then evidence of the reasonable value of his services was competent.
The objection of a variance is not available to appellant. In its fifth instruction it submitted to the jury the right of the appellee to recover on a quantum meruit, and cannot therefore now be allowed to object that there was no count upon a quantum meruit in the declaration. When both parties have procured the court to instruct the jury as to the law on the state of facts disclosed by the evidence and to direct a verdict to be returned in accordance with their respective rights on such state of facts, neither can complain that the facts proved were not within the allegations of the pleadings. Illinois Steel Co. v. Novak, 184 Ill. 501" date_filed="1900-02-19" court="Ill." case_name="Illinois Steel Co. v. Novak">184 Ill. 501; Illinois Central Railroad Co. v. Latimer, 128 id. 163; Consolidated Coal Co. v. Haenni, 146 id. 614.
For the same reason the objections taken to the first and second instructions given for the appellee are not valid, and the fourteenth and fifteenth instructions were properly refused. There was evidence tending to show that no fixed rate of compensation was agreed on. Appellee’s third instruction related only to the 2219.40 acres, as to which the verdict was in favor of appellant, and therefore could not have been injurious to it. The appellant’s sixteenth instruction was properly refused, because there was evidence tending to sustain other counts than those mentioned in it. The refusal of appellant’s eighteenth instruction to find for the defendant on the count for goods sold did it no harm, nor did the failure of the jury to specify the counts upon which they found their verdict. They stated the items on which they found for the plaintiff, and it does not appear that the appellant made any objection to the verdict when it was received. The designation of the counts found for or against it could have been of no benefit to the appellant under the pleadings in this case. The objection that the 'hypothesis of appellee’s fourth instruction has no foundation in the evidence is not sustained by the record.
For the error in admitting the testimony of appellee’s wife the judgment will be reversed and the cause remanded.
Reversed and remanded.