Cunningham v. Alexander

Mr. Presiding Justice Waterman delivered the opinion of the Court. The damages awarded in this cause being in excess of the ad da/ranum of the declaration, it is insisted that for this reason the judgment must be reversed. ¡No such objection was made in the court below; it therefore can not be . . urged in this court. Had it been presented in the Superior Court, it could easily have been obviated by amendment. Utter v. Jaffray, 15 Ill. App. 236; 114 Ill. 470. The case was first tried before his Honor, Judge Gary, without a jury, but Judge Gary having been transferred to the Appellate Court before the case was decided, it became necessary to submit the matter to another judge. The matter thus came before his Honor, Judge Brentano. A stipulation was entered into, signed by counsel on both sides, that on the hearing before Judge Brentano the transcript of the evidence taken before Judge Gary should be read in evidence, and no other evidence offered. It is now insisted that no bill of exceptions showing what evidence was heard before Judge Gary was made, and that the evidence given upon the last trial fails to show that the transcript of a stenographer’s notes, read before Judge Brentano, was a correct transcript of the evidence heard by Judge Gary. The transcript was read and treated in the trial before Judge Brentano, by each party, as the transcript of the evidence heard before Judge Gary, and as that referred to in the stipulation of the parties, and it is now too late to make this objection. It is next insisted that the evidence does not sustain the finding. There is force in the suggestion, that, as Judge Brentano did not see or hear any of the witnesses, the finding does not come to us with the presumptions in favor of its correctness upon disputed questions of fact that ordinarily exists. We have examined the bill of exceptions here presented, and find no sufficient reason for overruling the finding of the Superior Court upon the questions of fact. As to the authority of Raymond as agent of the defendant below, to make the guaranty upon which this suit is brought, we think that the conduct of the defendant was such as to indicate that Raymond was authorized to do what he did, at least to induce the plaintiffs below to believe, and act upon the belief, that Raymond had such authority. The judgment of the Superior Court is affirmed.