Hinsdale-Doyle Granite Co. v. Armstrong

Wilson, J. Neither the grounds of the motion to strike out the evidence relating to the commission agreement, nor the reasons of the court sustaining the motion, appear in the record, but it is stated in the brief of appellant’s counsel that the reasons assigned were, that it did not sufficiently appear that the contracts which plaintiff claimed he had been instrumental in procuring, had been procured through plaintiff’s personal efforts; and that the services rendered by the plaintiff, and the means used by him in endeavoring to procure the granite contracts were immoral and against public policy. Upon whichever ground the ruling was based, we are of the opinion that the court erred in withdrawing the evidence from the consideration of the jury. The agreement, upon its face, was fair and legal, and was a contract which, both in respect to its terms and its subject-matter, it was competent for the parties to make. It was not an agreement relating to any particular building or specific work, but was general in its terms. It provided that appellee was to act as agent of appellant for the period of two years in seeking customers and soliciting the sale of its granite for monumental, building, and other purposes. Appellant was a company located in the city of New York, engaged in the granite trade, and desired to introduce its goods into other places. This it could only do through its agents. Appellee had been an architect in Chicago for some years, and was familiar with the city and its building enterprises. It was natural, therefore, that appellant should have selected him as a person who would be likely to make an efficient representative of the company. We see nothing in the agreement itself, nor in the selection by the company of its agent, to necessarily cast suspicion upon its validity or fairness. The more important questions in the case are, first, whether the services of appellee were of such a nature as to prevent him from recovering the stipulated commission, or other compensation therefor; and secondly, whether there was such a want of proof of appellee’s instrumentality in procuring for appellant the granite contract, as to justify the action of the court in withdrawing that part of the plaintiff’s case from the jury. Considering these questions in the inverse order stated, it seems to us manifest that if the court withdrew from the jury the plaintiff’s evidence of services rendered under the commission contract, on the ground that it was insufficient to show that he had been instrumental in procuring the granite contract, it was an invasion by the court of the province of the jury, for, whatever may be said as to the nature of the means used by him, the testimony shows undeniably that he was actively engaged for a considerable period of time in efforts to procure the substitution of granite in lieu of limestone for the pilasters and columns. To what extent his efforts may have been instrumental in procuring the granite contract, it is not necessary for us to determine; that was a question of fact for the jury to pass upon, and which the plaintiff had the right to have submitted to them. It was not the case of an entire want of proof, but was one in which there was testimony directly tending to show that the plaintiff had rendered services under the commission agreement which may have been the means of securing the contract for appellant. We are, therefore, of the opinion that it was error to withdraw the evidence from the jury on the ground of its insufficiency. But the principal ground relied on to sustain the action of the court is that the evidence disclosed the use of means and influences by’’appellee in his efforts to procure the substitution of granite in place of limestone, which were corrupt and immoral, and for which no recovery can be had. As the case will have to be submitted to another jury, we shall refrain from discussing the evidence in detail, or expressing an opinion as to its effect as a whole. The testimony tended to show that for a considerable period of time appellee was actively engaged in efforts to procure the substitution of granite for the pilasters and columns in place of limestone; that he had repeated interviews with Egan, the architect of the county buildings, until whom he had formerly been in partnership, and explained to him wherein it would be a benefit to the building to have a more substantial and durable stone, that would not scratch and be liable to be marked; that the granite could be put in'long lengths, and would beautify the building, while the Lemont limestone, of which the building was to be constructed under the McNeil contract, could not be got in lengths of more than three and a half feet, and would turn yellow, etc.; and that he urged Egan to recommend to the County Board the adoption of granite; that Egan, becoming satisfied that the change was desirable, promised to recommend it if the city would also consent to the use of granite in the city building; that appellee went to see Mr. Tilley, the architect for the city building, several times, and had him meet Egan, who finally agreed to recommend granite; that objections to the change were raised by the commissioners on account of the existing contract with McNeil & Son; that to remove that objection appellee went to see McNeil many times and urged him to consent to the substitution of the e-ranite on account of its benefiting as well as beautifying the building; that he also labored with Walker, who was interested in the McNeil contract, and that they finally consented to the change; that appellee also recommended the substitution of granite to members of the county board. Egan testifies that he frequently saw appellee in the committee room; and there is also testimony from Tilley and others, tending to show that he engaged actively in efforts to bring about the change from limestone to granite. The proof shows that granite was finally adopted; that bids therefor were invited by the County Board, and the contract for the columns and pilasters was let to appellant at $139,970, for which it has been been paid in full. Appellee testifies that appellant has paid him on account of the commission contract $5,150, of which he gave $4,000 to one Keogh to assist him in procuring the adoption of granite in place of limestone. On the other hand, there was evidence tending to show that appellee resorted to the use of improper means to influence the action of individual members of the County Board, such as drinking with them, and in one or two instances treating them to suppers, personally importuning them, etc. Appellee testified that he never, paid the commissioners any money, but on the contrary when urged by Hinsdale, the president of the Granite Company, to do so, refused; and in his explanation of his treating them to suppers, he says: “I invited them into Burke’s on one or two occasions; probably it was just about the time when men usually eat supper, and I asked them to go in and take supper with me.” It is claimed by the counsel for appellant that the evidence on the part of plaintiff was sufficient to show that both of the written agreements between the parties were made to improperly influence public officers and the employes and servants of the public in the discharge of their duties, and that all that was done thereunder was tainted with corruption, and cannot, therefore, be made the basis of a legal cause of action. It is sufficient to say that the determination of the question of corruption involved the determination of the facts, upon which the change was predicated, and the jury was the chosen and Appropriate tribunal to which the determination of the facts, had been submitted by the parties. If undue influences were relied upon as a defense, the burden was upon appellant to. prove it. There was a conflict of evidence in relation to the nature and extent of the means used by appellee in his efforts to procure favorable action by the county commissioners, which should have been referred to the decision of the jury. Hnder the practice as now settled in this State, the rule may be stated thus: Where there is no proof to support the plaintiff’s cause of action, or where there is one essential allegation of a declaration which has no proof tending to support it, the court may properly instruct the jury to find for the defendant; hut where there is evidence tending to support the plaintiff’s case in all its parts, it is improper to instruct the jury to disregard it and find for the defendant. See the following cases: Poleman v. Johnson, 84 Ill. 269; Martin v. Chambers, Ibid. 579; Phillips v. Dickerson, 85 Ill. 11; Guerdon v. Corbett, 87 Ill. 272; Pemberton v. Williams, Ibid. 15. Also, Caveny v. Weiller, 90 Ill. 158; in which the court said: “This mode of instructing a jury to which an issue has been submitted, is subject to criticism, and in most cases would work a reversal.” And in Hubner v. Feige, the court uses the following language: “We cannot approve of this mode of instructing a jury. Such form of instruction is always objectionable. Under our law the jury are the judges of the evidence. It is an invasion of the rights of the jury and an usurpation of their functions for the court to determine for them what facts are proven, or attempt to tell them what their verdict should be on a question of fact. * * The court may inform the jury what facts will sustain the issue, but may not determine whether such facts have been established.” The withdrawal of the appellee’s evidence in relation to the commission’s contracts was equivalent to instructing the jury to find for the defendant as to that part of the plaintiff’s demand, and was erroneous. For that error the judgment of the court below is reversed and the cause remanded. Beversed and remanded.