McEwen v. Kerfoot

Mr. Justice Lawrence delivered the opinion of the court: This was an action of assumpsit brought by Kerfoot for the purpose of recovering commissions alleged to be due to him for selling certain real estate in the city of Chicago, belonging to McEwen. The declaration contained only the common counts—the count for work and labor having this clause: “and in like sum for commissions on sale of land made by the said plaintiff for the said defendant, and at the said defendant’s request.” The defendant pleaded the general issue, and the following special plea: “And for a further plea in this behalf, the said defendant says, actio non because he says that he, the said defendant, hath against him, the said plaintiff, a certain claim and demand, for this, to wit: that the said plaintiff ■not being the agent of the said defendant, but without lawful authority, thereto, pretended to sell to one John Garland, certain lands, houses and real estate of the said defendant, known and described as numbers 359 and 361 Ohio street, in the city of Chicago, and caused and permitted to be recorded in the recorder’s office of said county of Cook, a memorandum in writing, purporting to be a sale of said premises to said Garland, whereby said defendant was put to great trouble, expenses, delay and annoyance in and about the bringing of a suit in chancery, and thereby bringing about a compromise of the claim of said pretended purchaser, and procuring the release and conveyance of the same, and the removal of the cloud thereby cast upon the title of said defendant to said premises, whereby the said defendant hath sustained damage for which he hath a claim and demand against the said plaintiff for the sum of one thousand dollars, and this he, the said defendant, is ready to verify, wherefore he prays judgment, and that the amount thereof may be in the first place set off against any demand which said plaintiff may establish in said action against the said defendant, and that the residue may be certified in favor of said defendant and execution awarded against the said plaintiff pursuant to the statute, etc.” The plea was afterwards amended by inserting after the averment of damages the following: “And the said defendant avers that the commissions and causes of action whereof the said plaintiff hath declared, are claimed and demanded by said plaintiff for, upon and out of the same subject matter that is set forth, in this plea; and not upon or out of any other different subject matter.” The plea, as amended, was demurred to, and the demurrer sustained. The defendant abided by his plea. The only objection taken to this plea, in the printed argument of the defendant, is, that it amounts to the general issue, by denying the agency of the appellee. The declaration, however, nowhere avers the agency, and it can only be inferred from the clause in the work and labor count above quoted. The plea cannot be considered as seeking to put in issue what is not averred in the declaration. The object of the plea is merely to set off unliquidated damages arising out of the subject matter of the suit, and the phrase in the plea “.not being the agent of the said defendant,” is merely a recital, by way of protest, that the pleader may not be considered as admitting the acts complained of by him were performed under an authorized agency. The plea does not amount to the general issue, and the demurrer, though special, should have been overruled. We do not deem it necessary to discuss the evidence or instructions further than to say, that although Kerfoot seems entitled to his commissions for the sale made by him within the authority of McEwen, yet when he found that McEwen repudiated that sale, although he may have done so improperly, Kerfoot’s functions as an agent, so far as regarded that sale, were at an end. The rights acquired by the purchaser Kerfoot should have left to him to establish as against his principal. Whether the conduct of his principal was right or wrong in repudiating the sale, it was enough for Kerfoot, as his agent, to know that he had repudiated it, and after that moment, he had no right, under pretence of protecting the purchaser, to embarrass his principal by giving the purchaser a written contract to be reduced to record, drawn upon a basis which his principal had refused to sanction. Kerfoot is entitled to his commissions, and McEwen to any damages he may have incurred in consequence of the issuance of the written contract hy Kerfoot, after he was made aware that McEwen had repudiated the sale. Judgment ' reversed and cause remanded. Judgment reversed.