Wolf v. Scully

Mr. Justice Brown delivered the opinion of the court. This writ of error to the Municipal Court is to reverse a judgment for $510 rendered against the plaintiff in error by a judge in the Municipal Court of Chicago sitting without a jury. The case was of the fourth class, and the amended bill of particulars on which the ease was tried was as follows: “Henry Wolf, To Scully and Rafferty, Dr. July 30, 1906. To commissions on sale of property known as 542-544-546 W. 12th street, Chicago, the purchasers of said property at said sale having been secured through the agency of said Scully & Rafferty under, verbal agreement of said agency entered into between said Henry Wolf and Charles Silverstein representing the firm of Scully & Rafferty, plaintiffs herein, being 2y2% of purchase price of $20,500— $512.50.” After judgment the statntory bond was given by defendant and a writ of error sned out of this court by him. A supersedeas was allowed on application, and the canse is now before ns for final disposition. The contention is made by the defendant in error that no objection nor exception being taken to the entry of the jndgment and shown by the hill of exceptions, the finding and judgment cannot be assigned for error, and there is nothing for this court to do npon the record except to aifirm the jndgment. As authority for this the case of The People ex rel. v. The Chicago & Northwestern Railway Company, 200 Ill. 289, is cited. That case involved ■ an appeal from the County Court of Kane county, and was governed by the provisions of the Practice Act as construed and interpreted by the Supreme Court. But neither the statntory provision nor the rulings on if relied on in that case governs this one—which, as we have noted, is a writ of error to the Municipal Court in a case of the fourth class in that court. As such it is governed by section 23 of “An Act in relation to a Municipal Court in the City of Chicago,” approved May 18, 1905, as that section stood when this canse was tried in the Municipal Court and this writ of error sued out. The act has since been amended and the amendment has been accepted by the people. Before that amendment, the section provided that no exception to the rulings and decisions of the Municipal Court npon the trial should be necessary to the right of either party to a review of such rulings in the Supreme Court or Appellate Court npon their merits, but it should be the duty of the Supreme Court or the Appellate Court, as the case might be, to decide such case upon its merits as they might appear from the statement of stenographic report signed by the judge, as provided for in the same section. No bill of exceptions eo nomine is necessary, and before the amendment of 1907 no objection even, to the action of the trial court, was necessary to secure a review. We need not, therefore, decide whether an objection to the entry of the judgment is not sufficiently shown in this case by the motion shown by the record to have been made before the Municipal Court to set it aside and grant a new trial, and the immediate filing of a stay bond and signifying the intention to sue out a writ of error from this court. The statute requires us to decide this case upon its merits as they appear from “the stenographic report signed by the judge,” which in this case bears the name of “a bill of exceptions.” We have decided that of the evidence so shown the clear weight is in favor of the defendant, and that the finding and judgment of the Municipal Court is therefore against it. As we have determined to remand the cause to the Municipal Court for a new trial, it would be useless and undesirable to discuss the evidence. It is sufficient to say that the question involved is not one of law; it is of fact. There is no dispute that if a real estate agent employed by a would-be seller “procures a customer who is ready, willing and able to complete the purchase, and with whom the seller has entered into a valid contract, he has earned his commission”; but there is a grave dispute—on which, it seems to us, on a careful reading of the testimony in this record, the defendant has the clear weight of evidence on his side—whether in this case the plaintiffs were employed by the seller or the purchaser was procured by them or their representative. The judgment is reversed and the cause remanded to the Municipal Court for a new trial. Reversed and remanded.