Hoyt v. Shipherd

Mr. Justice Ceaig delivered the opinion of the Court: This was an action of assumpsit, brought by appellees, against appellant, in the Superior Court of Cook county, to recover commissions on an alleged sale of real estate by appellees for appellant. On the trial of the cause, the jury returned a verdict for appellees for $1200. A motion for a new trial was overruled, and judgment rendered upon the verdict. Appellant relies upon two points to reverse the judgment: First. The court erred in permitting appellees to read to the jury from the opinion of the court in Vol. 55 of Illinois Eeports, on page 476, what purported to be a contract of sale from Hoyt, by Shipherd, Sweet & Co., agents, to Underwood. Second. The verdict is not sustained by the evidence. It was clearly error for appellees to read from the volume of reports what purports to be a contract, against the objection of appellant. This was not the best evidence. If the contract was lost or destroyed, it was proper, upon proving that fact, to introduce secondary evidence of its contents. If the contract was correctly transcribed in the bill of exceptions, this would be competent evidence of its terms and contents. It nowhere appears that the contract, as read from the opinion, was the same as that inserted in the bill of exceptions. But even admitting the contract was properly in evidence, we do not think the evidence justified a recovery for appellees, even on their own theory of the terms of the authority given them to sell by appellant. Shipherd, one of the appellees, testifies that appellant gave their firm authority in writing to make the sale. The instrument authorized the property to be sold for $48,000, one-third cash, the balance to remain on mortgage for one and two years, with interest at eight per cent; sale to be made subject to a commission of two and a half per cent to Ship-herd, Sweet & Co. The contract of sale appellees claim was made, is substantially as follows: “ Sale to Underwood, purchase price of land $48,000; terms, $16,000 to be paid in twenty days from date, balance in one and two years ; warranty deed to be given if first payment is made as above, remainder to be secured by a trust deed and note. Failure or refusal to make the first payment within the time stated, to make the contract null and void/ Money to be refunded in case of valid objection to the title, otherwise to be retained as liquidated damages, if the payment is not made; time declared to be of the essence of the agreement. $600 acknowledged to be received on said first payment, $600 more to be paid on or before the 24th instant. Dated Chicago, 22d February, A. D. 1869. “[Signed] W. H. Hoyt, “By Shipherd, Sweet & Co., Agents.” According to Ship herd’s own evidence, one-third of the purchase money, under his authority to sell, was to be paid cash down, and by the contract he made he gave twenty days for the purchaser to make the payment. No provision is made for interest on the deferred payments. If the first payment is not made in the time limited, the contract is to be void. The $600 was to be refunded in case of valid objection to the title, otherwise to remain as liquidated damages, if the payment due in twenty days is not paid. Appellees had no authority to sell on these terms, and the attempted sale having been made without authority, was not binding. The rule is well settled, that an agent can not go beyond his authority, and he must act strictly according to the power conferred on him. Thornton v. Boyden, 31 Ill. 210. See also Baxter v. Lamont, 60 Ill. 237. It would be manifestly unjust to permit appellees to recover commissions on a sale unauthorized, and from which appellant has derived no benefit. It is, however, insisted by appellees that appellant ratified the contract after it was made. Shipherd testifies that appellant ratified the contract. This, appellant denies. Appellant seems to be corroborated on this point by Shipherd’s own evidence. He says he sent a receipt to appellant to be signed, for the $1200 he had received. This was for the very purpose of obtaining a ratification of the contract, but appellant refused to sign it. There can be no pretense, from the evidence in,this case, that appellant has acted unfairly. Boker, who was in some way interested with appellees in commissions on such lands as they should sell, called on appellant, and solicited the sale of this property. Appellant informed him he had just purchased it, and held it by contract, and did not know how the title stood. Boket, acting for appellees, still urged that the land should be placed in the hands of appellees for sale. This notice in regard to the title, to Boker, was notice to appellees, for whom he was acting. Appellees now claim the sale they made to Underwood was not consummated, for the reason the title was defective, and Underwood refused to take the property on that ground. This may all be true, and still no blame can be imputed to appellant. He notified appellees, before they undertook the sale, that he held title by contract, and as no other defect appears, from the evidence, to the title, they were in no way deceived. Appellees, with full knowledge of appellant’s title, undertook to sell. Their commissions depended on a sale. Ho sale has been effected, and we do not think appellees entitled to commissions. The judgment of the circuit court will be reversed. Judgment reversed.