| Ill. | Nov 15, 1866
delivered the opinion of the Court:
This action was brought by appellee before the recorder of the city of Sparta, against appellant, to recover a demand of $157.75. On a trial, plaintiff recovered that sum and costs against defendant. He thereupon prosecuted an appeal to the Circuit Court, and a trial was had before the court and a jury, when the jury found a verdict in favor of plaintiff for the sum of $158.85. A motion for a new trial was entered and overruled by the court, and a judgment was rendered upon the verdict. And defendant brings the case to this court to reverse the judgment.
It appeared in evidence on the trial in the court below, that Calderwood, Dickie and appellant were partners, or on the eve of entering into partnership; that they were desirous of purchasing a certain woollen factory of one Swanwick. Appellee proposed to aid them in the purchase of the property, and to get Swanwick to sell them the property at the same price which it had cost him at an administrator’s sale, if they would give up to him two notes he had given, one to Calderwood and the other to appellant, and which they then held. The proposition was assented to; Swanwick was sent for by appellee, and he came, the property was sold and conveyed to them, at the price named in the proposition.
It also appears that the notes were the individual property of the holders. Calderwood destroyed the note held by him; but appellant assigned his. After it was sold and suit was brought on it, defendant brought this suit to recover compensation for the damages which he sustained, by reason of a breach of the agreement. The assignee collected from appellee in error, on execution, the note and interest, amounting with costs to $158.85, but the payment was not made until after this suit was instituted.
Calderwood testified that he burned the note which he held, in discharge of the contract, as he understood it. It is, however, urged that the action is misconceived, as it should have been against all of the members of the firm and not alone against appellant. The action of Calderwood, who had every means of knowing what the agreement was, shows that he understood it to be individual and not joint; and carried it out without any question or objection according to that understanding. He says he destroyed the note,-—not that the firm did.
The ownership of the notes was in the individuals, and not in the firm; and there is no evidence that the proposition was made or assented to by them otherwise than as individuals. If a firm then existed, it does not appear from the evidence. And there is no evidence, that appellee had any reason to suppose that they were acting as a firm, and Calderwood’s subsequent acts show that they were not, as he destroyed the note, and it does not appear that the amount had been charged to the firm. Neither Calderwood nor Dickie says that it was ever regarded or treated as a firm contract. And it. appears, that appellant, upon being inquired of as to what disposition he intended to make of the note, replied that he did not know that they would exact it. There is no pretense that the note belonged to the firm, and why this answer, unless he felt that there was an obligation to surrender it, resting upon him? Again, it was a question for the jury, whether the contract was joint or several, and they have found that it was the latter, and we think the evidence warrants the finding.
It appears, we think, clearly, from the evidence, that appellee was an agent in negotiating the purchase; and a partner of appellant, who must have known, says that he was not acting for the firm. If this was so, then he must have acted for the parties as their individual agent. And they would not probably have assented to his proposition if they had not supposed it to their advantage.
Appellant had placed it out of his power to surrender up the note, by transferring it before this suit was brought, and that was a breach of the contract. It was no longer in his power to comply with his agreement, and hence a demand of the note was useless, and the law never requires the performance of a useless act. The objection, therefore, that no demand was made was not well taken.
As to the admissibility of Calderwood’s evidence, there is nothing in the record to show that he had any interest in the event of the suit. Had it appeared that the contract was made with the firm, and it was liable to be sued for its breach, then the objection would have been well taken. But such is not the evidence.
This action was instituted in a court where written pleadings are not required, and it is the well settled practice, that, in such courts, the party suing need not even name his action, or if misnamed, that will not affect his rights, if upon hearing the evidence he appears to he entitled to recover, and the court has jurisdiction of the defendant and of the subject matter of the litigation. In this case an action of assumpsit would lie for the breach of the agreement; and the defendant below, treating or calling it an action of trover, could not affect the rights of plaintiff below. It then follows, that there was no error in refusing defendant’s fourth instruction, which could only relate to an action of trover; and, if appellee could have sued for money had and received, this might have been treated as such an action; and no error is perceived in refusing the fifth instruction asked by defendant.
The fifth instruction asked by appellant, no doubt, as an abstract proposition, states the law correctly. But we fail to perceive how it can be applicable to the evidence in this case. It appears that suit was brought on the note on the 31st day of January, and this suit was brought on the 18th of the following February. The breach of the contract was then complete, and authorized the bringing of this suit. And, the breach of contract having previously accrued, it was immaterial whether he had paid the note or not at the time this suit was brought. There was, therefore, no error in refusing this instruction. As to the tenth instruction asked by appellant, it will be time to determine its correctness when the appellee shall sue the firm for this debt. There is no evidence that such a suit had been brought, or recovery had, except in this case, and the instruction was, therefore, inapplicable, and was properly refused. We have already seen that Calderwood was a competent witness, and, if so, the eleventh instruction asked by appellant was properly refused.
It is, again, insisted that the act incorporating the town of Sparta is a private law, and should have been given in evidence on the trial below. By reference to the last section of the act (Private Laws 1859, p. 279), it will be seen that the law is declared to be a public act, and it declares that judicial notice thereof shall be taken in all courts and places. We are at a loss to perceive how clearer or more explicit language, to make it a public act, could have been employed. It is true, it also declares that the act may be read in evidence without proof. Had this been the only provision there might have been some plausibility in the objection. But the requirement is imperative, that judicial notice shall be taken of the act. And this we understand to be required whether the act be read to the court or not as evidence.
There was no objection urged to the want of jurisdiction of the officer trying the cause before the appeal was taken. It was conceded, on argument, that he was a justice of the peace with enlarged jurisdiction. We have, therefore, determined the case without reference to that-question.
The judgment of the court below must be affirmed.
Judgment affirmed.