64 Ill. App. 437 | Ill. App. Ct. | 1896
Lead Opinion
delivered the opinion of the Court.
Appellant contends that an agent of the plaintiff, engaged in selling its goods, is presumed to be authorized to sell the same, conditioned that the prices therefor shall be such that the buyer shall not lose anything on a contract he is undertaking.
There is no evidence that the plaintiff ever heard that its agent had so agreed, until this suit was begun, long after the sewer pipe had been sent, received, and put in the ground.
The defendant repeatedly promised to pay in full for the pipe, making no claim for indemnity against loss on his contract. ■
' An agent to sell is not authorized to make such a contract of indemnity as appellant sets up. The consideration which moves an agent when selling does not enlarge his authority. An agent, to sell, has power to do only what is usual in the course of the business of selling. Hess & Co. v. Heegaard, 54 Ill. App. 227; T. W. &. W. Ry. Co. v. Elliott, 76 Ill. 67. Cooley v. Perrine, 41 N. J. L. 322; Story on Agency, 9th Ed., Sec. 170.
If the defendant had notified the plaintiff that he had bought th.e pipe upon terms that he should be indemnified against loss, in the manner he now claims, and the plaintiff had thereafter sent the pipe, a different question would be presented.
The instruction to the jury was proper, and counsel had no right to waste the time of the court in an endeavor to make them disregard the instruction the court had given to them.' The verdict is, in form only, that of the jury, as the judgment is, in form only, that of the court.
The finding and judgment are such as the law pronounces upon the undisputed facts.
Counsel, after such an ifistruction had been given, had no right to poll the jury; it wás their duty to obey the instruction of the court, and for counsel to insist upon polling them was, in effect, to ask each juror if he obeyed the instruction of the court — discharged his duty.
The judgment of the Circuit.Court is affirmed.
Dissenting Opinion
I dissent as to the polling of the jury, not that there is any sense in doing it, but because it is part of the system of this State that the jury shall be at liberty to disregard the law.
But in all seriousness, it is a dangerous power with which to intrust a judge, that he may give a direction which a jury shall obey, or that he may, without the assent of the jury, enter as a verdict what the jury never found.
If he may do so in a case where the proof is clear and beyond possibility of doubt, then it is in his province to decide when that case exists.
f The liberty Of Englishmen has in former times stood upon denying that power to a judge. Penn’s Case, 6 Howell St. Tr. 951; Bushel’s Case, Yaughn’s Eeports, 135.
