153 Ill. 561 | Ill. | 1894
delivered the opinion of the court:
It is insisted that the opinion of the Appellate Court fails to recognize the distinction between a general and special authority in an agent. Also, that both the circuit and Appellate Courts erred in holding that appellees were not estopped to deny their liability to appellant by the payment to Mayo & Widmer. The question is not as to the authority of Barnum, under his agency, to employ appellant, but of his power under that agency, viz., the power of attorney, and the contract between himself and appellees, entered into contemporaneously with it. and of which appellant had notice, to bind appellees to pay appellant. When appellant was employed he knew that appellees, under their contract with Barnum, were not to be liable for attorney’s fees, and that if anything was recovered, Barnum was to pay such fees out of his half of the proceeds. If nothing was recovered, Barnum might still be liable out of his personal funds, and would be so liable unless he protected himself by a special contract, but appellees were liable in no event under that contract of agency. Suppose no settlement had been made by the attorney of Funk with appellees, and the suits in LaSalle county had proceeded to final judgment; would it have been claimed by appellant that appellees were liable to pay him? Certainly not. If there is any liability, then, in this action, it must result from some act or conduct of appellees outside of the employment by Judge Barnum.
The position that appellees are estopped to question their liability to pay appellant because they paid Mayo & Widmer is wholly untenable. The doctrine of estoppel can have no possible application to the case. The question here is, as said by the Appellate Court, whether-there was a contract, express or implied, between the parties. Paying other counsel employed under an entirely distinct contract in no way tended to prove such a contract. Counsel for appellant, in their argument, seem to lose sight of the fact that he is seeking to recover in a court of law in an action ex contractu.
We think the legal questions raised on this record are met and properly decided in the opinion of the Appellate Court, and its judgment will be affirmed.
Judgment affirmed.