131 Ill. App. 585 | Ill. App. Ct. | 1907
delivered the opinion of the court.
The contentions of appellants’ counsel are: (1) Appellee failed to prove that the Eichmond-Smith Co., with whom appellants made the contract of July 10, 1902, was his agent; (2) that appellant Trainor signed the contract only as surety, and bound himself to the Eichmond-Smith Co. only, and his liability cannot be extended to include a contract made by appellee, he not being the principal of the Eichmond-Smith Co.; (3) that appellant Trainor received no notice of Gustaf-' son’s default; (4) that the appellee was engaged in an unlawful combination in restraint of trade; (5) that the court erred in refusing the instructions requested by the appellants and in giving an instruction, and (6) that the court erred in rulings on the admission and exclusion of evidence.
It appears from the contract of December 8, 1902, that Bradford G. Bichmond and Eugene Smith were the agents of appellee, and it appears from other evidence that said Bichmond and Smith constituted the Eichmond-Smith Company.
Gustafson testified that Eichmond-Smith was thé agent, and acted under the contract of December 8, 1902, and identified a letter of date July 14, 1902, written to him about the shipment of milk by him, and signed “Eichmond-Smith Co.” Also, that he quit shipping milk to one Erickson at the request of the Bichmond-Smith Co.; also, that the Bichmond-Smith Co. procured him to sign the December 8th contract.
EL G. Beatty testified that he had charge of the office of the Bichmond-Smith Co., and that the company was organized in 1901. The trial occurred in the early part of December, 1905, and one of the witnesses testified that he had done business • with the company since they started business four years ago, or in 1901. Another witness testified that he knew the BichmondSmith Co., and had dealings with it from November, 1901, till April, 1902. The contract of July 10, 1902, which includes an order for the milk, is addressed to ‘1Bichmond-Smith Co., Agent,” and the evidence clearly shows that company to have been the agent of appellee, and that the Bichmond-Smith Co. directed the appellee to ship the milk. Appellee clearly recognized the Bichmond-Smith Co, as his agent.
The contract of appellants with the BichmondSmith Co., of date July 10,1902, created that company the agent of appellants, to procure the shipment to Gustafson of milk at the prices specified in the contract. Appellants’ counsel urges that appellant Trainor was only surety for Gustafson and that his liability must be strictly construed. He may have been surety as between him and Gustafson, but as between him and the Bichmond-Smith Co. and Swanson, he is a principal in the contract of July 10, 1902. He ordered the milk for Gustafson through the BichmondSmith Co., and is equally liable with Gustafson for the milk "shipped and delivered in pursuance of that order. The doctrine of suretyship has no application to the facts of the case. The liability of appellant Trainor is absolute, by the contract of July 10th; and, as between him and appellee Swanson, he was not entitled to any notice of Gustafson’s default in failing to pay for the milk, and even though he were entitled to notice, he could not avail of the want of it, without evidence of loss or damage. Mamerow v. National Lead Co., 206 Ill. 626, 636. There is no such evidence in the record.
The fourth contention of appellants’ counsel is that the plaintiff was engaged in an unlawful combination in restraint of trade, and therefore cannot recover. This is not sustained by the evidence. The contention is based on the statute, section 1 et sequens of chapter 38 of the Revised Statutes in respect to combinations to fix prices. Hurd’s Rev. Stat. 1905, p. 725. The evidence shows that the Milk Shippers’ Union mentioned in the contract of December 8, 1901, is an association of farmers scattered throughout Illinois, Indiana and Wisconsin, which fixes the price of milk for six months in advance; but the evidence shows that neither the appellee, the seller of the milk, nor the Richmond-Smith Co., appellee’s agent, is a member of that union, and it is not claimed that either of the appellants, the purchasers of the milk, is a member of the Milk Shippers’ Union. Conceding, for the sake of the argument, that the Milk Shippers’ Union is an illegal combination or association within the meaning of the statute, it by no means follows that if A., not a member of that association, sells milk to B., who is not such member, the sale is, within the meaning of the statute, illegal, merely because the price agreed on between A. and B. had also been agreed on as the price of milk by ah illegal association or combination of persons. If such were the ease it might well happen that no dealer in or retailer of milk, in the city of Chicago, could legally procure milk for sale and delivery to his customers, and the supply to consumers might be entirely cut off, and thus innocent parties, for whose protection the statute was enacted, made to suffer.
Ford v. Chicago Milk Shippers’ Association, 155 Ill. 166, cited by appellants’ counsel, has no application to the facts of this case.
The appellants’ counsel does not argue that any ruling of the court on the admission or exclusion of evidence was erroneous; therefore objections to such rulings must be deemed waived.
Instructions 1 to 7, both ihclusive^jvere properly refused. They are framed on the theory that there was an unlawful combination to fix the price of milk, to Which appellee was a party, and there is no evidence to support the theory that appellee was a party to any such combination. The 8th instruction requested by appellants’ counsel was properly refused; hut the court properly modified the instruction and gave it as modified, and we find no error in the modified instruction, nor does the bill of exceptions contain any exception to the modification of the instruction or the giving it as modified.
We are of opinion, from inspection of the entire record that substantial justice has been done between the parties, and the judgment will be affirmed.
Affirmed.