| Ill. | Jan 19, 1897
delivered the opinion of the court:
Appellee obtained judgment against appellant in the circuit court of Cook county by default, for $1973.86. Subsequently the court set it aside, and allowed defendant to plead upon his executing bond to pay any judgment which might be obtained against him. He executed the bond and filed several pleas, one of which set up “that at the instance and request of the plaintiff, defendant entered into a contract with the city of Anderson, Indiana, to construct for said city, within its limits, a system of sewers, for which said city agreed to pay the defendant $71,850, and at the same time, and contemporaneously with the making of said contract, defendant agreed to purchase of plaintiff the sewer-pipe necessary to go into the said system of sewers, upon the plaintiff representing and agreeing that it would allow him, the defendant, a credit on the purchase price of said sewer-pipe equal to the amount, if any, which he, the defendant, might lose in completing the contract with the city of Anderson, according to the specifications, at the price of $71,850; that defendant completed the contract at a cost to him of $78,000, and has paid to the plaintiff all he agreed to pay it as the contract price for such sewer-pipe, except $1650; that the plaintiff was active, as the work progressed, in collecting from defendant the purchase price of said sewer-pipe, and defendant, upon the completion of said work, found it had cost him more than the contract price; that if he were to pay the plaintiff the amount claimed of him, he would lose on said contract with the city of Anderson $6000; that the plaintiff was so informed and requested to account with the defendant, to pay over to him the amount he would lose on said contract over and above $1650, all of which the plaintiff has refused to do, which said sum of money which has been overpaid to the plaintiff, to-wit, $6000, so due from the plaintiff to the defendant" as aforesaid, exceeds the damages sustained by the plaintiff by reason of the non-performance by the defendant of the several supposed promises in the said declaration mentioned, and out of which said sum of money the defendant is ready and willing, and hereby offers, to set off and allow to the plaintiff,—and this the defendant is ready to verify, wherefore he prays judgment if the plaintiff ought to have its aforesaid action against him, and that he may have judgment against the plaintiff for $4000.”
The defense relied upon on the trial was that averred in this plea. The only testimony introduced in support of it was to the effect that one Frank Hartford, who represented the plaintiff in the sale to defendant of the sewer-pipe used by him in the Anderson contract, at the time of the bidding told him he must reduce his bid of $80,000 below $72,000 as another bidder had bid the latter amount; that upon defendant replying that he could not “do it and come out on it,” Hartford said: “If you can’t do that we will see that you don’t lose any money. We want to sell our pipe, and we don’t want to sell it to this other party. I want to sell this pipe to you. There is one other man that is going to bid on this contract, and I will see that you don’t lose any money;” that upon the making" of these statements the bid was reduced below $72,000 and the contract awarded to defendant; that in the performance of it he lost $6000. After this evidence had gone to the jury the court excluded it, on the ground that there was no proof offered to show that Hartford had authority to bind the plaintiff by such an agreement. The jury were then instructed to return a verdict for the plaintiff for $1973.86, which they did. Counsel for the defendant then requested the court to allow him to poll the jury, which was denied and judgment entered on the verdict. The Appellate Court having affirmed that judgment this appeal is prosecuted.
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 of set-off was sustained. It is not claimed that any proof whatever was offered of express authority from the plaintiff to Hartford to enter into a contract like that set up in the plea. There was 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" date_filed="1875-01-15" court="Ill." case_name="Toledo, Wabash & Western Railway Co. v. Elliott">76 Ill. 67; Story on Agency,—9th ed.—sec. 170; Cooley v. Perrine, 41 N. J. L. 322.) If, then, what was said between the parties, as detailed by the defendant, amounted to a contract on behalf of the plaintiff to repay 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.
The contention that it was error to refuse to allow the jury to be polled after it had obeyed that instruction is, in our opinion, wholly without merit. The peremptory instruction to find for the plaintiff was, in effect, taking the case from the jury. When the court directs a verdict an issue of law is raised upon the whole case, and there is no fact for the jury to find. To poll a jury upon the rendering of such a verdict would be an idle ceremony, resulting in no possible benefit to any one. Donnohue v. I. & L. M. Ry. Co. 87 Mich. 13" date_filed="1891-07-28" court="Mich." case_name="Donoghue v. Indiana & Lake Michigan Railway Co.">87 Mich. 13; Bell v. Hutchings, 86 Ga. 562" date_filed="1891-01-19" court="Ga." case_name="Bell v. Hutchings">86 Ga. 562.
The judgment will be affirmed.
Judgment affirmed.