Kerfoot v. Cromwell Mound Co.

Mr. Justice Walkeb delivered the opinion of the Court: This was an action of assumpsit, brought by appellee, in the Superior Court of Cook county, against appellant, on a contract, to recover damages for its breach. The declaration contained special and common counts. The case was tried by the court without a jury, by consent of the parties, and the issues were found for plaintiff, the damages assessed, and judgment rendered in its favor. The case was taken to the Appellate Court for the First District, where the judgment was affirmed, and defendant brings the record to this court, and assigns errors. It is first urged that the Superior Court erred in admitting the agreement because it was not executed by appellant, and it therefore was variant from the agreement declared on in the declaration. Whether the written agreement is binding on appellant is the first question to be determined. Appellant’s name appears in the written contract as one of the parties of the second part. The agreement purports to bind him as well as the other parties of the second part, and the testing clause recites that the contract was caused to be signed by the parties representing the parties of the first and second parts. Hot only so, but appellant signed his name to it for C. A. Kerfoot, one of the two persons appointed to represent, and who did represent, the parties of the second part. Having signed the agreement, no difference whether for himself or for C. A. Kerfoot, he must be presumed to have known that he was named as a party to it, and that it was intended to bind him according to its terms. Having signed and delivered the agreement, he must be presumed to have intended to bind himself according to its terms. He thereby adopted, and bound himself by, the agreement. It being binding on him, it was properly read in evidence. If it varied from the contract set out in the declaration so as to be precluded from being read under the special counts, being a valid contract, which bound appellant, appellee having fully performed its part of the contract, it, according to all the authorities, was admissible under the common counts. It appears from the evidence, and it is not controverted, that appellant, and a number of other owners of property in the city, determined to have the streets in front of such property graveled, and they authorized Jones and C. A. Kerfoot to contract with appellee to have the gravel furnished and the work done. They agreed upon the terms of the contract, and it was reduced to writing, and executed and delivered, as above stated, among themselves, each owner agreeing to pay for the improvement that should be thus made in front of his property. The company having performed its part of the agreement, and appellant having failed to pay his portion of the money, this action was brought for its recovery, and we think the written agreement was clearly admissible, under the common if not the special counts, in connection with the other evidence in the case, to establish a liability on the part" of appellant. The contract, when admitted, showed a request by appellant for appellee to furnish the gravel and to perform the work, and it fixed the price to be paid when performed. There was therefore no error in admitting the written agreement in evidence. The other questions presented in the Superior Court are questions of fact, and are setttled by the findings of the Appellate Court. But it is insisted that the 89th section of the Practice act is unconstitutional. It provides: “The Supreme Court shall reexamine cases brought to it by appeal or writ of error, as to questions of law only, and no assignment of error shall be allowed which shall call in question the determination of the inferior or Appellate Courts upon controverted questions of fact in any case, excepting those enumerated in the preceding section.” The section referred to, as amended in 1879, (Sess. Acts .1879, p. 223,) is this: “Appeals from and writs of error to the circuit courts, the Superior Court of Cook county, the Criminal Court of Cook county, county courts and city courts, in all criminal cases below the grade of felony, shall be taken directly to the Appellate Court, and in all criminal cases above the grade of misdemeanors, and eases in which a franchise or freehold or the validity of a statute or the construction of the constitution is involved, and in all cases relating to revenue, or in which the State is interested, as a party or otherwise, shall be taken directly to the Supreme Court. ” Thus it- is seen that we are prohibited from reviewing the facts in all other cases, except, as is held, cases in chancery. Moore v. Tierney, 100 Ill. 207. It is contended that the first section of article 6 is violated by that provision. The portion to which reference is made provides that the Supreme Court shall have original jurisdiction in cases relating to revenue, etc., and “appellate jurisdiction in all other cases.” The 11th section of that article provides that the General Assembly may organize Appellate Courts, “to which such appeals and writs of error as the General Assembly may provide may be prosecuted from circuit and other courts, and from which appeals and writs of error shall lie to the Supreme Court in all criminal cases, and cases in which a franchise, or freehold, or the validity of a statute is involved, and in such other cases as may be prescribed by law.” From this provision it is seen that, with the exceptions named, the General Assembly has the power to make all judgments and decrees affirmed by the Appellate Court, final and conclusive, and the section confers unrestricted authority on the General Assembly to require all appeals and writs of error to be tried in that court but the enumerated exceptions. Having the power to make all judgments of that court final but the excepted cases, it may provide that any portion of its judgments shall be final, on the principle that the whole contains all of its parts. If it has power to make the entire judgment final, as we have seen it has, it may any portion of the judgment,—hence the power to make the judgment of that court, on the facts, final- and conclusive on this court. When our Supreme Court was first organized, the common law of England had been adopted and was in force in this State. Under that law the appellate courts never considered the weight of the evidence except in appeals in chancery. The findings of the jury were final, and not subject to review by the appellate court. It is true the circuit judge could set aside the verdict and grant a new trial, but the appellate court received and acted upon the findings of the facts as conclusive, and considered only questions of law arising on the record. This being the common law, and it being in force in this State, it became and was the law of the Supreme Court of the State. It so remained until the 21st of July, 1837, when the General Assembly required the court to pass upon the evidence when the finding of the facts was excepted to in the circuit court. The enactment provides: “Exceptions taken to opinions or decisions of the circuit courts overruling motions in arrest of judgment, motions for new trials, and for continuances. of cases, shall hereafter be allowed; and the party excepting may assign for error any opinion so excepted to, any usage to the contrary notwithstanding. ” (Laws Special Sess. 1837, p. 109.) That was the first introduction of the practice of reviewing the evidence heard by the jury in the court below,'by this court. Down to that time this court looked to the evidence in the case merely to see in what manner questions of law were presented, and only considered such questions. The same constitutional provision as to the jurisdiction of our Supreme Court was, in substance, inserted in the constitution of 1818, and in both subsequent constitutions, and it was under that provision that the practice of this court in considering questions of law alone obtained until 1837, and that practice still obtains in the Supreme Court of the United States, and other States in the Union. We are aware of no case 'that holds that parties have a constitutional or vested right in the practice governing courts, except as the right of trial by jury is secured. It has never been held that the legislature has no power to alter the practice of the courts of the State. Under the present practice the evidence may be reviewed in all cases by the Appellate Court, which was not allowed at the common law. The General Assembly may, no doubt, under the constitution, restore the common law practice, and permit the review of the evidence by either the Appellate or this court. When the constitution of 1818 was adopted there was no practice in the appellate courts, except in chancery, to review the evidence, and that was because the court, on appeal, had before it the same evidence, in the same form, in writing, that was heard by the vice-chancellor. No such practice as the appellate court, in cases at law, reviewing the evidence, was known at that time, hence the term “appellate jurisdiction, ” meant only the power to review and decide questions of law. We therefore do not have the slightest doubt of the constitutionality of the section challenged. The judgment of the Appellate Court is affirmed. Judgment affirmed.