American Splane Co. v. Barber

Mr. Justice Ricks delivered the opinion of the court: The first count in the declaration set out the contract in hcec verba, averring it to be a contract between E. A. Barber and appellant, and averring that it was terminated by E. A. Barber by reason of a breach thereof on the part of appellant, and further averring payment by appellee of §1000 under the contract, and that by the contract, and its termination, an action had accrued to appellee. The second count set out the contract in legal effect, as between E. A. Barber and the appellant, and averred the payment by the appellee of §1000 thereunder, the expiration of the contract and her right of recovery. The common money counts were for money due from the appellant to the appellee. It is insisted, however, by the appellant, that this contract being between E. A. Barber and the appellant, and being under seal, the appellee could not maintain an action upon it in her own name. Upon the trial of this cause appéllee put in evidence the receipt of appellant, bearing date May 25, 1896, as follows; “Received of E. A. Barber check for one thousand dollars ($1000) drawn by Elizabeth W. Barber, on People’s National Bank, Ottawa, Kansas, and endorsed by E. A. Barber, on account of contract bearing even date herewith,” — which was signed by appellant. This shows that appellee had complied with the contract according to her written acceptance thereof of the same date endorsed on the contract offered in evidence. But two clauses of the contract, outside of this endorsement, refer to this $1000 or to appellee. The first reference made to it is the following: “Said second party shall, when this contract is signed, procure L. W. Barber, wife of said E. A. Barber, to pay said first party $1000 on account of the stock of said goods to be carried under this contract, and shall keep said sum of $1000 so invested during the term of this contract.” The next reference to it is the last clause of the contract, which is: “It is further understood and agreed that at the expiration of this contract said first party 'Shall relieve said L. W. Barber of her interest in said goods, and shall pay her therefor the price they have cost her, namely, $1000.” We do not regard appellee as a party to the written contract, but it seems very clear to us that the provision with reference to the re-payment of $1000 was express to her and for her benefit, and since the enactment of section 18 of chapter 110 of the Revised Statutes of 1874, (p. 776,) appellee could sue in her own name under this contract, regardless of the fact that the contract was under seal. (Dean v. Walker, 107 Ill. 540; Webster v. Fleming, 178 id. 140.) Under the view we take of this contract, when it had expired by its own limitation, as was the case when this suit was brought, there was no act or thing remaining to be done by appellee. Appellant owed her the money, and payment of it was all that was required by it. Such being the status of the case, we think the contract was competent evidence under the common counts. We think there was no error in admitting it in evidence. Nor do we think the court erred in refusing to set aside the verdict and grant a new trial. It would be hard to tell what legal definition to apply to the status of appellee to that contract. It is clear from its provisions that she was to get nothing by it and was to give $1000, which was to be paid back to her at the expiration of it. Her husband, E. A. Barber, was by the contract made the agent of appellant to handle its goods and all goods were to be shipped to this agent. After this contract was made the goods were shipped to St. Louis, and this agent, by direction of his principal, established an office there for the purpose of handling them. He was required by appellant to do business in its name and to use the following letter-head: “American Splane Company, St. Louis Branch. — E. A. Barber, Mg’r. — ........ Street, No....., St. Louis.” Appellant also furnished money to fit up the office, and goods were shipped to Barber, as agent, accordingly. Appellee was in no manner to have charge of these goods. They were never to be delivered into her custody; .she was never to render any account for them; nor was she to return them, but she was to be relieved of her interest in the goods, at the expiration of the contract, by the payment by appellant to her of $1000. There is no stipulation in the contract that this money is to be held or should stand as a guaranty that E. A. Barber would perform the contract or return the goods. In fact, there is no stipulation that he shall return the goods, or any part of them. The suit was begun August 26,1897, and the contract had expired by its own limitation in May of that year. Appellee was entitled to have her money returned to her, and, by the terms of said contract, to be relieved of her interest. We think that the tendering of the goods' after the verdict could not in any manner affect the rights of the parties in this case. Finding no error the judgment of the Appellate Court is affirmed. Judgment affirmed.