Waldron v. Brazil & Chicago Coal Co.

McAllister, P. J. We are of opinion that the contract in suit contains one stipulation that is independent, and others that are dependent; and that the application of the settled rules of law governing actions upon dependent and independent stipulations and covenants, is the only way in which we can determine the question whether the plaintiff was entitled to recover under the circumstances of this case. The stipulation by Waldron, that from May 13, 1878, to May 1, 1879, he would use his influence in every proper way for the advantage of said company as coal dealers, in the city of Chicago, and to perform for said company such services as the state of Ms health would permit, was necessarily independent, and the performance of it could not be a condition precedent to the monthly payments of July, August and September, for which the suit was brought. But the other stipulations are: that “ in consideration of such influence and such services, be the same more or less, said company agrees to pay to Mrs. Annie E. Waldron, wife of said Asa D. Waldron, the sum of one hundred and fifty dollars per month for the period of one year, reckoning from the first day of May, 1878, payable monthly, and to be receipted for by her, commencing on the first day of June next.” Now here the influence and services, more or loss, were that for which the company was to pay such monthly sum. The stipulation on Waldron’s part to use his influence, and render services for said company as coal dealers in Chicago, and that of the company to pay as above stated, were therefore dependent, and some influence and'service on the part of Waldron each month, for which a recovery was sought, was a condition precedent to a right to recover. The declaration was framed upon this theory; it averring that Waldron used his influence and performed services for the defendant as coal dealers in the city of Chicago, during all the time from the making the contract to the bringing the suit. 8ucli averment was as to the months sued for, necessary. Serjeant William’s Motes to Pordage v. Cole, 1 Win. Saunders, E. 320, note 4. It was also necessary that such averment of performance of the condition precedent, should have been sustained by evidence. White v. Atkins, 8 Cush. 367; Taylor v. Saird, 38 Eng. Law & Eq. 281. We are inclined to the view that it was indispensable to a recovery, by plaintiff, for any one or more of the monthly installments, that she should have shown, as performance of a condition precedent, some influence used or services performed for defendants, as such coal dealers in Chicago, by her husband, in each of the months for which she sought to recover. If this be the correct view, then the plaintiff wholly failed to make out any cause of action against defendant; because it appears by uncontradicted testimony, coming from plaintiff’s own side of the case, that her husband used no influence and did no service for or on behalf of defendant as such coal dealer in Chicago, or otherwise, during any part of the months of July, August or September, 1878; that he was physically unable to to do so. Assuming, therefore, that in no view of the evidence was a cause of action shown, it would seem unnecessary to consider the questions raised by appellant upon the instructions to the jury. Mann v. Brady, 67 Ills. 95. If it could be satisfactorily shown by argument that all the stipulations of the agreement are independent, then, of course, plaintiff would be entitled to recover on the mere production and proof of the instrument. The position that the single instance of inflitence and services in the first month of the contract, bound the defendant to the monthly payments for the whole year, seems to us utterly unsound. The judgment of the court below will be affirmed. Affirmed.