80 Ill. App. 67 | Ill. App. Ct. | 1899
delivered the opinion of the court.
The only question presented is the sufficiency of the evidence to sustain the finding of the trial court. We can not pass upon the rulings of the court in holding or refusing to hold propositions of law presented, because the propositions of law were presented too late, and after the issues had been determined and judgment rendered.
Propositions of law will not be reviewed for error by an appellate court when the holding or refusal of them could in no way have guided the trial court in- reaching its conclusions,as, when they are submitted only after finding and judgment. Allman v. Lumsden, 159 Ill. 219.
We have, therefore, only to inquire if the evidence sustains the finding of the trial court.
Substantially all contention in this behalf by counsel for appellant is directed to the sufficiency of the contract. It is urged, first, that the contract is without consideration; second, that it lacks mutuality; third, that the damages are speculative; fourth, that the contract is void as being in. restraint of trade; fifth, that it is void as being in contravention of the statute in relation to trusts and combinations; sixth, that by its terms the contract fixes the right to declare the contract ended as the only damages for a breach; and, seventh, that the contract is void as being against public policy.
We are of opinion that no one of these grounds of objection can be maintained. As to the first, it is enough to say that the granting to appellant of the exclusive right to sell the patterns of the appellee within certain limitations, is of itself sufficient as a consideration for the undertaking by appellant. Burch v. Hubbard, 48 Ill. 164; Buchanan v. International Bank, 78 Ill. 500.
As to the second objection, it can not be maintained that there was lack of mutuality in the contract, for the same reasons which go to the question of consideration apply equally to the mutuality of obligation. The appellee did agree to something, viz., to grant the exclusive right to sell as above noted. This was sufficient in this behalf. Brown v. Rounsavell, 78 Ill. 589; Standard Fashion Co. v. Ostrom, 16 N. Y. Sup. Ct., App. Div. 220.
It is complained under the third heading that the damages are speculative. Upon careful examination of all the evidence, we are not disposed to disturb the finding of the trial judge as to the damages. There was evidence from which he could arrive at some of the pecuniary loss to appellee by reason of the breach of the contract. We can not say that his conclusion was unwarranted.
The fourth contention, viz., that the contract is in restraint of trade, because by its terms appellant agreed to sell no other patterns than those of appellee, and not to sell their patterns except at a price fixed, is not tenable as applied to a contract whereby an agency is. created to sell specific articles made by appellee, like the patterns here. Brown v. Rounsavell, supra.
The same reasoning applies equally to the application of the statute relating to trusts and combinations. By its terms, the limitations put upon an agent in the sale of his principal’s (the manufacturer’s) goods, are not affected.
Under the sixth heading, it is urged that the terms of the contract which provide that in the event of a breach by appellant, appellee may declare it canceled, operate to determine the damages and the only damages which can be recovered for such breach. The argument is without merit. The contract, while it provides that appellee may, in certain events, terminate the agency and engage another agent, does not purport to declare what shall be liquidated damages for a failure of appellant to carry out its terms.
The last of these grounds of objection is that the contract is void because by one of its provisions appellee undertakes to save appellant harmless from any damages which may result from a breach of another and different contract, theretofore made with another company. This ground of objection was not presented to the consideration of the court below, which would be a sufficient reason for refusing to consider it here. But the validity of the contract with the Butterick Company is not here involved, nor could it be determined from the evidence; nor is any enforcement sought or had of the provisions of this contract to indemnify the appellant for any loss consequent to a disregard of the terms of the Butterick contract.
The judgment is affirmed.
