80 Ill. App. 35 | Ill. App. Ct. | 1899
delivered the opinion of the court.
It is contended by counsel for appellant that the trial court erred in thus peremptorily directing a verdict.
In support of such contention it is urged, first, that the evidence would warrant a conclusion by the jury that Hatch was the agent of appellee, authorized to procure a broker, and that acting under such authority he did employ appellant; and, secondly, that if this were not so, yet the fact of Hatch being appellee’s agent to sell the bonds would warrant the employment of appellant as a sub-agent, and that such sub-agency was ratified by appellee.
The maintenance of one or the other of these two propositions is essential to a possible right of recovery. We are unable to assent to either.
The evidence not only does not establish that Hatch was employed by appellee to procure a broker, but, on the contrary, there is no evidence tending thereto.
The other proposition is, that the nature of the employment of Hatch by appellee, i. e., to sell the bonds, was such an employment as would, as a matter of law, authorize Hatch to procure a broker as a sub-agent for appellee, and by such employment obligate appellee to pay the broker’s commissions. To sustain this proposition we find no authority in the cases cited elsewhere. Against it is the authority of many decisions. Corbett v. Schumacker, 83 Ill. 403; Solly v. Rathburn, 2 Maule & Selw. 298; Cockran v. Irlam, Id. 301; Paddock v. Colby, 18 Vt. 485.
If it could be said that appellee had employed Hatch to procure a broker, then appellant could, as is urged by counsel, insist upon his rights against appellee, the undisclosed principal, even although appellee knew nothing of the agency of Hatch when the transaction was had. But no agency of Hatch for any such purpose is disclosed by the evidence. On the contrary, whatever evidence bears upon this question shows that Hatch was acting in his own behalf in efforts to dispose of the bonds for the appellee and for a compensation to be paid to and received by him. If, in performing the work for which he was to be compensated, he chose to employ others to assist him, his so doing could in no measure obligate appellee. There is no evidence showing or tending to show a ratification of any emploinnent of appellant by Hatch on behalf of appellee. After the sale a demand in writing was made upon appellee by appellant for his commissions, and service of the demand was acknowledged, but no agreement was entered into to pay the amount demanded.
But it is contended as to the $250 which Brown admitted was still in appellee’s hands, that Brown obligated appellee to pay this amount to appellant. No authority is shown in Brown to thus undertake for appellee to pay to appellant money which belonged to Hatch. In the absence of such showing it is unnecessary to inquire as to the sufficiency of any consideration for the making of the alleged agreement.
The theory of appellant’s case was disclosed by the bill of particulars filed with the declaration, the common counts. It is as follows:
“ Bill of Particulars.
“On the 9th day of October, A. D. 1894, at Chicago, Newton P. R. Hatch, on behalf of said Seckner Contracting Company, and as said- company’s agent thereunto authorized, made a proposition to the plaintiff that if the plaintiff would procure P. K. Tyng & Co., of Buffalo, New York, to purchase the $80,000 issue of East Chicago Water Works Company bonds at ninety-five cents on the dollar and accrued interest, said Seckner Contracting Company would pay to plaintiff the difference between the amount realized thereby and ninety cents on the dollar and accrued interest, which proposition said plaintiff then and there accepted; and afterward procured said P. K. Tyng & Co. to purchase said bonds at ninety-five cents on the dollar and accrued interest, being the sum of $80,000, whereby and by virtue of said proposition and acceptance the said Seckner Contracting Company then and there became liable to pay and became indebted to said plaintiff in the sum of $4,900, said sum being the difference between the amount for which said bonds were purchased by P. K. Tyng & Co. and ninety "cents on the dollar and accrued interest; neither said sum of $4,000 nor any part thereof having been paid to plaintiff, although demand therefor has been made on said defendant by said plaintiff, this suit is brought to recover said amount so due and payable to the plaintiff as aforesaid.”
Appellant failed to present any evidence which would sustain a recovery upon this theory, or upon any other, and none which the court was bound to submit to the jury. Hence, there ivas no error in directing a verdict. The judgment is affirmed.
