98 Ill. App. 76 | Ill. App. Ct. | 1901
delivered the opinion of the court.
The only question presented upon this appeal is as to the propriety of the instruction peremptorily directing a verdict for defendant in error.
The instruction was evidently given upon the theory that the liability for the services rendered by plaintiff in error was a copartnership liability resting upon defendant in error and Mr. Cowen, and that the suit should have been brought against both.
But there was evidence, not only tending to establish, but establishing, that the engagement of plaintiff in error was the personal undertaking of defendant in error.
The positive admission of the defendant in error, made while testifying under oath, was, when taken in connection with the testimony of the plaintiff in error, and while uncontradicted, quite sufficient to warrant a verdict for the plaintiff in error.
One member of a copartnership may obligate himself personally, if he chooses so to do, in a matter of the firm’s business. Sylvester v. Smith, 9 Mass. 119.
And this, although the whole benefit of the transaction is enjoyed by the firm. Watt v. Kirby, 15 Ill. 200; Funk v. Babbit, 156 Ill. 408.
The question of whether it was an undertaking of the firm or by the defendant in error individually was, like other questions of fact, an issue to be determined by the jury. Stecker v. Smith, 46 Mich. 14; Pond v. Starkweather 99 N. Y. 411.
For the error in peremptorily directing a verdict for the defendant in error, the judgment is reversed and the cause is remanded.
