Frazer v. Howe

Mr. Justice Scholfield delivered the opinion of the Court: The practice of withdrawing the evidence from the jury, although looked upon with disfavor, (Crowley v. Crowley, 80 Ill. 469, and Smith v. Gillett, 50 id. 290,) is nevertheless admissible, and where there is any one essential allegation of a declaration which has no evidence to support it, we have held it is the duty of the court to exclude from the consideration of the jury all the evidence in the case, or to charge the jury that there is no evidence to support the essential allegation, and for want of such proof to find for the defendant. (Poleman v. Johnson, 84 Ill. 269.) Motions to exclude evidence, and motions to instruct the jury to find for the defendant in such cases, are in the nature of demurrers to evidence, and hence they admit not only all that the testimony proves, but all that it tends to prove. (Pennsylvania Co. v. Conlan, 101 Ill. 93.) If there is no evidence before the jury, on a material issue, in favor of the party holding the affirmative of that issue, on which the jury could, in the eye of the law, reasonably find in his favor, the court may exclude the evidence, or direct the jury to find against the party so holding the affirmative; but when there is such evidence before the jury, it must be left to them to determine its weight and effect. (Best on Evidence, (1st Am. ,ed. from 6th Lon. ed.) sec. 82, p. 112.) It is not within the province of the judge, on such a motion, to weigh the evidence and ascertain where the preponderance is. This function is limited strictly to determining whether there is, or is not, evidence legally tending to prove the fact affirmed,— i. e., evidence from which, if credited, it may reasonably be inferred, in legal contemplation, the fact affirmed exists, laying entirely out of view the effect of all modifying or countervailing evidence. Hubner v. Feige, 90 Ill. 208 ; Crowe v. The People, 92 id. 231; Pennsylvania Co. v. Stoelke, Admr. 104 id. 201. Under this view of the law, we perceive no error in the ruling of the Superior Court that the letters were not sufficient evidence of a written contract, under the Statute of Frauds. The writing, to meet the requirement of the statute, need not give all the details, but it must express the substance of the contract with reasonable certainty, either by its own terms or by reference to some other agreement or matter from which it can be ascertained with like reasonable certainty. (Atwood v. Cobb, 16 Pick. 227; Ives v. Hazard, 4 R. I. 29; Meadows v. Meadows, 3 McCord, 458.) The contract can not rest partly in writing and partly in parol. (Seymour v. Belding, 83 Ill. 222; Weaver v. Fries, 85 id. 356.) The letters here fail to show an unqualified agreement between the parties, both in respect of the quantity- of lime to be delivered and the price to be paid for it, which were indispensable elements in the contract. But we. think the Superior Court erred in excluding all evidence of the parol contract, and in refusing to admit evidence of money expended and labor performed under it for the benefit of appellees. There was evidence of a parol contract, competent for the consideration of the jury, made in March, 1879, between Arthur T. Howe, James B. Ormsby, Halsey A. Bovee and Frederick A. Heath, then composing the firm of the Marble-head Lime Company, on the one side, and the appellant, E. G-. Frazer, on the other side, whereby the Marblehead Lime Company agreed to sell and deliver to appellant all the lime he could sell in all that part of the State of Iowa north of the Chicago, Burlington and Quincy railroad, also in any territory in Illinois which he might work up which they had not already worked up, and also in any territory in Minnesota and Wisconsin which he might work up, for and during the term of five years then next ensuing, and they were to employ no other person to sell lime for them, and to sell to no other person, within this territory, for said term of five years. In consideration of this, appellant was, during the term, to devote himself, so far as reasonably necessary, to the business, buy and sell no other lime within that territory, and pay them, for lime in barrels, sixty cents per barrel, and for lime in bulk at the rate of twenty cents per barrel. There was some delay, at the first, in consequence of the difficulty of obtaining satisfactory freight rates; but the evidence tends to show this was but temporary, and that for a period of near eighteen months after March, 1879, both parties acted, in selling and delivering lime within the designated territory, under a recognized contract, w’hich the evidence also fairly tends to show was that above stated. There was also evidence showing that the Marblehead Lime Company manufactured a superior quality of lime, known as “Marble-head lime; ” that they claimed the exclusive right of using the brand of that name; that they were anxious to have their brand introduced throughout the State of Iowa, and their trade elsewhere increased, and that appellant was a dealer in lime, largely acquainted, and doing considerable business in the territory indicated in the contract, and also that he was a competent and successful dealer. The proof also showed that the Marblehead Lime Company, in Decernher, 1880, sold their kilns and established business, or good will, to the “Marblehead Lime and Cement Company, ” and thereafter was unable to comply with its contract with appellant, and the Marblehead Lime and Cement Company refused to carry out the contract. During the progress of the trial appellant offered to prove that after the making of the contract in March, 1879, he at once proceeded to introduce this lime, and gave away car loads of the lime, and spent, during the year, besides his. services, several thousand dollars in expenses, and the like sum in 1880, besides the value of his services, in carrying out the contract. Appellant also offered to prove what he did, and what appellees did, under the contract; that he expended, during the years 1879 and 1880, upwards of $5000 in carrying out the contract; that about December 1, 1880, he had substantially introduced the Marblehead lime throughout the entire territory covered by the contract, and that the Marble-head lime trade was quite well established by him. Appellant also further offered to prove, when parties had once been induced to trade in that lime they would not purchase any other lime from appellant, and that he thereby lost many customers that he before had and otherwise would have had dealing in lime generally. He also offered to prove that when the Marblehead Lime Company sold out to the Marblehead Lime and Cement Company, they received $17,500 for their established trade, or good will, alone; that the trade worked up by appellant, under his contract, at the time of the sale constituted more than one-fourth of the entire trade, or good will, for which the Marblehead Lime Company received the said $17,500,—all of which offers, on objection being interposed by appellees, w'ere rejected by the court, and the court ruled that the proposed evidence was inadmissible. ' Evidence was given tending to show that by December, 1880, appellant had succeeded in working up a trade in Marblehead lime in that part of Iowa north of the Chicago, Burlington and Quincy railroad; that it requires both skill and the incurring of serious expense to work up such trade, amounting to several thousand dollars per annum, and that the exclusive privilege of selling Marblehead lime in that territory is worth from $3000 to $5000 per annum. The court, on motion of appellees’ counsel, excluded all the evidence from the jury. The general doctrine, as asserted in Butcher’s Steel Works v. Atkinson, 68 Ill. 421, that where a party has had the benefit of the services of another, under a parol contract, to which he successfully pleads the Statute of Frauds, he is liable to that other for the value of his services under a quantum meruit, is conceded by appellees to be the law, but they contend that doctrine has no application here, because appellant’s labors were bestowed and his money expended solely in his own business, and not in the business or for the benefit of the appellees. This wholly ignores the tendency of evidence that was given, and of evidence that was offered to be given but excluded by the court on appellees’ motion. As has been seen, there was evidence before the jury tending to show that trade in appellees’ lime could be built up in the territory designated in the contract, of great value, but that this necessitated the expenditure of money and the bestowal of labor, and appellant offered to prove that he did expend a large amount of money and bestow considerable labor in building up such trade, and by the 1st of December, 1880, he had thereby succeeded in so building it up that when the Marblehead Lime Company sold out to the Marblehead Lime and Cement Company, one-fourth of the $17,500 which it received for its established trade, or good will, was in consequence of the trade he had so built up in the territory designated in the contract, and that after appellant had induced customers to trade in Marblehead lime, they would not, after-wards, deal with him for other lime. Instead, therefore, of his money being expended and his labor bestowed for the benefit of himself, the offer was to prove the direct reverse— that it was to his material loss, and to the great pecuniary benefit of appellees. The theory of the case proposed to be made out by appellant is, that the contract was of ultimate benefit to both himself and appellees, but that it required a present outlay of money and bestowal of labor which would not be compensated for at the time, but that the compensation would come in the latter years of the term embraced by the contract, as the result of a well established trade. By the refusal to perform the contract appellant has lost all the labor and outlay, and been deprived of the anticipated compensation, but that appellees, by their sale, have enjoyed all this. This is certainly not equitable, and there is authority fully sustaining appellant’s right to recover to the extent appellees have derived benefit from his money and labor. In Williams v. Bemis, 108 Mass. 91, the plaintiff agreed, orally, with one Towne, the defendant’s testator, to cultivate Towne’s land for two years for two-thirds of the crop for two years, the plaintiff to furnish one-half the seed and all the labor, and Towne all the manure. The work was done and seed furnished under the contract the first year, and at the expiration of the first year the crop of that year was divided according to the contract, the plaintiff taking two-thirds and Towne one-third thereof. Towne then refused to allow the plaintiff to plant the land the second year. The work done and seed furnished and used upon .the land by the plaintiff during the first year was more than was necessary for the first year’s crop, and of greater value than the plaintiff’s share of the crop, and inured to the permanent benefit of the land and of the crop for the second year, as was understood and anticipated by the parties when the contract was entered into and the work was done and the seed used upon the land. It was held the plaintiff was entitled to maintain an action for work done and materials furnished in cultivating the land. The court, after some discussion of the general principles applicable in such cases, proceed thus: “The defendant insists that the work was done by the plaintiff in the cultivation of crops, which were to be partly his own, and was not done upon the credit of Towne, or with any expectation of charging it against him. Such undoubtedly was the understanding of the parties originally. But as Towne saw fit to say that the special contract was not binding upon him, it can not be set up by his executor as binding upon the plaintiff. (King v. Welcome, 5 Gray, 41.) It can not be treated as a nullity for one purpose, and as a contract for another. It required two years for its completion, and both parties understood that there was to be no profit or advantage to the plaintiff except from the operation of both years taken together. A large part of the labor and expense incurred in the first year had no reference whatever to the operations and results of that year taken by itself, but were a preparation of the land for increased productiveness in the second year. The plaintiff must be considered as having, in that way, paid in advance, in part at least, for the privilege of using the land in the second year in the manner agreed upon. By the repudiation of the contract he has lost the privilege which he had so paid for. The consideration upon which he made that payment has failed by the willful act of the other party to the contract, and he is, therefore, entitled to recover what he has so paid.” In Ray v. Young, 13 Texas, 550, the plaintiff agreed to build certain sheds, etc., and to take care of the cattle of the defendant’s intestate for five years, for which he was to receive one-fourth of the increase. Before the contract was executed, but after the plaintiff had progressed in the execution thereof on his side, the defendant’s intestate died. The Statute of Frauds was interposed in a suit brought by plaintiff, but it was held plaintiff was entitled to recover under a quantum meruit. The court, among other things, said: “It is contended that, induced'by the contract, the plaintiff had been at the expense of building a residence and erecting pens, preparatory to taking charge of the stock of the intestate. * * * It would be iniquitous- to rule that the plaintiff had no redress for injury and loss that the defendant’s intestate had induced him to incur. If the provision of the Statute of Frauds cited is to have that effect, instead of its preventing fraud it will be making it the instrument and means of perpetrating fraud. We believe that the plaintiff is entitled to compensation for his labor so bestowed. ” In Welch v. Lawson, 32 Miss. 170, the plaintiff had purchased, by parol, a tract of land of the defendant, and at the defendant’s request had gone to the expense of moving his family on it, it being understood that the defendant would, at the earliest convenient time, make the deed. Afterwards, defendant repudiated the contract, and plaintiff was forced to remove. He recovered a judgment in the trial court for expense and loss thus occasioned, and this judgment was affirmed by the Supreme Court. It was said by the court, in delivering its opinion: “The case would fall under a familiar rule—that he had incurred expense and trouble at the request of the defendant—and a right to compensation would follow as a matter of course, not for the loss of the bargain, but for the loss actually sustained, or for the trouble and loss of time incurred. It is a salutary principle of law that every man is bound to the observance of good faith to the extent that he knows that he is trusted; and it is not necessary, to hold him liable, that he was not in a situation to be benefited,—he must act so as not to injure another by his conduct. The defendant knew the extent to which he was trusted, and had, by his own act, secured the confidence of the plaintiff. He could not be ignorant of the trouble and expense which would necessarily be incurred by the plaintiff if he reposed such confidence in the assurance of the defendant as one man may reasonably repose in another. Under such circumstances, while it is unquestionably true that no action can be maintained, either to recover damages for the loss of the land, or bargain, or for a specific performance, yet to hold that the action can not be sustained to recover for the injury or loss already named, would be equivalent to saying that the subject was one in regard to which fraud or bad faith could not be practiced. ” It is impossible to perceive any distinction, in principle, between these cases and the case here made, and proposed to be made, by appellant. But conceding the accuracy and application of the principle of these cases, counsel for appellees nevertheless insist there is still another and insuperable reason why appellant can not recover here. It is shown that Halsey A. Bovee died late in the summer of 1879, and that Mary A. Bovee, his widow, did not become a member of the firm until January 1, 1880, and it is contended the death of Halsey A. Bovee was the dissolution of the old firm, and the admission of Mary A. Bovee as a member of the partnership was the formation of a new firm, and that she, in the absence of an express assumpsit, which it is claimed was not proved, can not be made liable for the debts of the old firm. The evidence tended to show that Mary,A. Bovee simply took the place of her husband in the firm,—neither taking out nor putting in anything; that the business, with her express consent and approbation, was conducted just as if no change had ever been made in the firm. While it is true that the incoming partner, in the case of the fluctuation of partners, or substitution of one partner for another, is not, in general, liable in respect of debts contracted by the firm previously to joining, yet there are exceptions to the rule, and it has been held, “that payment of interest of old debts, length of standing in the firm, knowledge of the state of the books, accompanied with benefit derived from the contracts on which they are founded, will be evidence from which a jury may infer the assent of the incoming partner to debts previously contracted by the firm. ” (Collyer on Partnership, (Perkins’ ed.) see. 522.) Parsons, in his work on Partnership, p. 435, says : “On the whole, we should say that the law of contracts and the law of partnership lead to the conclusion that the new partner is not bound to the old creditors, unless on a promise to them for a consideration, both of which might, of course, be indirect, and implied by circumstances. Whether the new incoming partner has thus assumed the old debts, is sometimes a difficult question of mixed law and fact. It certainly may be implied by circumstances, and what circumstances should, in any one case, imply it, is a question partly for the court and partly for a jury. ” And after giving illustrations, he adds: “And in general, whatever might be the form or technical effect of the contract, if, in substance, it amounted to an agreement by the incoming partner to share in the debts due ■from the firm, he would be held accordingly.” It was said by Lord Eldon, in Ex parte Beele, 6 Yes. Jr. 604, in speaking of this question: “Slight circumstances might be sufficient, where, in the original transaction, the party to be bound was not a partner, but at the subsequent time had acquired all the benefit as if he had been a partner in the original, transaction, and it would not be unwholesome for a jury to infer largely that that obligation clearly, according to conscience,' had been given upon an implied authority. ” If, in fact, as there was evidence tending to prove, Mary A. Bovee took the place of her deceased husband,- Halsey A. Bovee, in the firm, intending that there should be thereby no change in the business and operations of the firm, the conclusion would be irresistible that she intended to bear the same burdens and share the same benefits in the firm that her husband, Halsey A. Bovee, would, had he continued to live, and so, necessarily, to take his place in all contracts whereby he was bound. There is, moreover, a much stronger reason in the present case why Mary A. Bovee should be liable as one of the partners, under a quantum meruit, than exists in ordinary cases of substitution of partners, and assumption by incoming partners of previous firm liabilities. The contract was in existence, and its performance continued from March, 1879, until some six or seven months after Mary A. Bovee became a member of the firm. The firm that refused to perform it was the firm of which she was a member, and yet the sole benefits under the contract, amounting, as we have seen, according to the proof offered, to more than one-fourth of $17,500, was enjoyed by that firm. She has enjoyed her pro rata part of the profit derived from appellant’s compliance with his part of the contract, and ought, therefore, to be liable, under a quantum meruit, with her co-partners. The objections that the contract was unilateral, and that no acceptance was sufficiently proved, go only to the weight of the evidence, and should, therefore, have been addressed tó the jury, and not to the court. There was evidence competent for the jury, tending to prove an undertaking on the part of the appellant to deal exclusively in appellees’ lime within the ■territory designated in the contract, and there were circumstances in proof from which, if not overcome by other proof, it would be implied appellant was bound to devote such time as was reasonably necessary to the introduction of appellees’ lime, and its sale, etc. So, also, there was evidence tending to show, and which, if not overcome by other proof, did show, an acceptance of appellees’ terms by appellant. We need only repeat, the question of fact, as settled by the preponderance of the evidence, could not be determined by the court on objection to the introduction of evidence, and on motion to exclude evidence. For the reasons expressed the judgment is reversed and the cause remanded. Judgment reversed.