Tanner v. Clapp

Mr. Presiding Justice Willis delivered the opinion of the court. A. J. Ridinger and C. L. Tanner brought suit in assumpsit in the Circuit Court of Livingston county against F. H. Clapp, H. D. Osgood, R. Menaugh, J. H. Kane, C. Mc-Greevy and L. T. Earnhardt, who constituted a partnership known as the Illinois-Manitoba Land Co., to recover commission for the sale of land. At the first trial the jury disagreed. Afterwards, Ridinger died and the suit proceeded in the name of Tanner as sole plaintiff. The pleadings being mislaid, .it was stipulated that all proper pleadings in assumpsit for the recovery of commissions for the sale of real estate be considered in. An application by appellant Menaugh for a change of venue was denied. There was a trial and a verdict for appellee for $640. A motion for a new trial was overruled, judgment was entered on the verdict and this appeal was taken by the defendants. It is urged that the court erred in denying the petition for a change of venue. The petition stated that the application was made with the consent and on behalf of all the defendants, but it was signed and verified by appellant Menaugh only. Section 9, chapter 146, Hurd’s R. S. 1905, provides; “When there are two or more plaintiffs or defondants, a change of venue shall not he granted unless the application is made by or with the consent of all the parties plaintiff or defendant as the case may be,” with a proviso relative to proceedings for the condemnation of property not material here. Menaugh’s co-defendants did not sign the petition and there is no evidence of their consent save the conclusion to that effect set out in the petition and its verification which is but hearsay, and therefore, in our opinion, not in compliance with the requirements of the statute. Had their signatures appeared on the petition or their consent been conveyed to the court in any direct way so as to bind them, it would have been sufficient. It is urged that as the declaration contained the common counts only, a recovery could not be had in the absence of a special count on the contract. The stipulation providing that all proper pleadings in assumpsit for the recovery of commissions for the sale of real estate should be considered in, obviated the necessity of a special count on the contract or any other formal pleading by either appellee or appellants. Appellants, in the spring of 1903, were engaged in selling land in Manitoba and Assiniboia. Appellant Earnhardt, in the latter part of April of that year, visited Saunemin, and -while there, offered the agency of their lands to P. H. Lannon, then associated in the real estate business with one Mies. Lannon did not accept the agency at first, but held the matter under consideration until about the middle of June and then accepted it. While Lannon or Lannon and Mies had the subject of the agency under consideration, Earnhardt had some negotiations relative to the agency of appellants’ lands with Ridinger and Tanner. Earnhardt claims that their agency with them was but temporary, to be surrendered if Lannon accepted the agency, and that they were to have commissions only on land sold to customers whom they produced at once and before Lannon took the agency. Ridinger and Tanner, on the other hand, claimed that their agency was unconditional. They in company with Earnhardt visited and solicited a number of persons to buy land, among whom were Ed. Thornton and William Sellmyer. On June 15, 1903, Lannon accepted the agency, and Earnhardt notified Ridinger that their services were ended. On July 7, Thornton and Sellmyer went with Lannon to Manitoba and bought land, Thornton 160 acres and Sellmyer 640. A few days before they went, one Lang, representing the Douglas Land Company, a competitor of appellants, visited Saunemin and with Tanner visited Thornton and Sellmyer and tallied land to them in Tanner’s presence. This suit was brought to recover commissions for the sale of real estate made to Thornton and Sellmyer and is based on an alleged promise by Earnhardt to Ridinger and Tanner that they should have a commission of $1 per acre on any land sold to Thornton and Sellmyer, whether sold by them or some one else. It appears that appellants, prior to Lannon’s accepting the agency, telegraphed appellee that an excursion was about to go to the lands and to bring on his men, but that they did not do so, and that soon after Lannon accepted the agency. Appellants notified Tanner and Ridinger of this fact. Appellants’ contention is that appellee did nothing towards bringing about the sale of the land to Sellmyer and Thornton, for -which sale to Sellmyer it is evident the commission was allowed by the jury, but that on the contrary, Sellmyer refused to have any dealings with appellee and had been dealing with Lannon before he accepted the agency, and had stated that he would go to see the lands with no one else, and that Lannon effected the sale to Sellmyer. Appellants paid Lannon a commission for the sale to Sellmyer, and Lannon had a man named Watts in some way associated with him, to whom he paid a part of the commission. Watts testified to a conversation with Ridinger, in which Ridinger made certain statements tending to show that he and Tanner had no cause of action against appellants for these commissions. The court excluded the testimony of Watts on the ground that he was a party in interest. The fact that he had some arrangement with Lannon by which he was to have a part of the commission for the sale made by Lannon did not make him a party in interest. Moreover Watts had received his part of the commission, and certainly that terminated his interest. He would he under no obligation to pay it back if appellee succeeded in this suit. It is true, he was asked on cross-examination if he had not stated since the first trial, that they had the commission if they could hold it, but that if the suit went against appellants, they were going to return it, or that in substance, to which he answered, “No,” but no proof was offered to contradict his statement. Watts5 testimony was competent and material, and its exclusion was error. On the trial, the evidence of Ridinger, the deceased plaintiff and Tanner’s co-partner, taken on the former trial was read. Appellant Clapp was offered as a witness in rebuttal thereof, and to contradict the testimony of Tanner. An objection to his competency was sustained because of the death of Ridinger. We are of the opinion that he was a competent witness to rebut anything’ contained in the evidence of Ridinger, and anything testified to by Tanner, but was incompetent for any other purpose. But for appellants to avail themselves of the wrongful exclusion of Clapp’s testimony, they should have made direct offers of proof as to what he would be asked to testify to. This appellants did not do, except in one instance and the record discloses that this was upon an immaterial question. Therefore we are of the opinion that the exclusion of his testimony does not amount to harmful error. The court should, however, have permitted Clapp to testify and left appellee to object if any questions were asked him outside the testimony of Ridinger and Tanner. We are of the opinion that it was competent to prove, as appellants offered, that after Lannon was appointed agent, Tanner introduced Sellmyer to Lang, agent of the Douglas Land Co., a competitor of appellants, and stood by while such agent sought to sell him lands. This would bear upon the case in two ways. First it would tend to show that they were acting adversely to the interest of their alleged employers and working against them instead of with them, and it might lead the jury to conclude that they had been so unfaithful in that respect that they ought not to receive compensation for their alleged services; and second, it would tend to rebut appellee’s claim that after Lannon was appointed Earnhardt told him and Ridinger that they should have their commission on the lands if they were sold to these parties, whether they had anything to do with the making of the sale or not, because if there had been such an agreement, they would not be likely to be taking part in an effort to sell the lands by a rival dealer. Such of the trial court’s rulings as kept out evidence of any co-operation between Ridinger and Tanner and the agent of a rival company to sell to Sellmyer and Thornton, were improper. There was no impropriety in the court refusing to admit proof that the agent of the rival company reported to his company that he had hired Tanner as his agent to sell their lands. It would have been competent to prove by such rival agent that he did hire Tanner to sell these rival lands before the sale to Sellmyer and Thornton or at the time the rival agent was introduced to them by Tanner, but the agent’s statement to his company was mere hearsay. Appellants complain of a number of other rulings excluding evidence offered by them. We will not extend this opinion to consider them except to say that a careful examination of the record discloses that some matters so excluded may have been material and competent, but they were properly excluded because not proper subjects of cross-examination. The court in appellee’s third and eighth instructions singled out and made prominent, as though specially important, the testimony of Ridinger, the deceased plaintiff, and then undertook to give the jury a summary of the facts which they were to consider in arriving at their verdict, but directed their attention only to those favorable to appellee, and omitted all that tended to illustrate or establish appellants’ theory of the case, and concluded by telling the jury that if they found the facts as stated, they should return a verdict for the plaintiff. One of the vices of these instructions is the singling out and calling the jury’s attention to the testimony of the witness Ridinger, as if in the judgment of the court his testimony was decisive of the case. Such a practice has long been condemned in numerous cases in the courts of this State as unfair and calculated to magnify the importance of the testimony of the particular witness. J. & S. Railway Co. v. Walsh, 106 Ill., 253; Wright v. Bell, 5 Ill. App., 352; Brown v. Monson, 51 Ill. App., 489. The second vice of these instructions is that they purport to summarize the principal facts but direct the attention of the jury only to those favorable to one of the parties. In Evans v. George, 80 Ill., 51, it is said, “It is the duty of the jury to consider all the facts, and when the court assumes to direct their attention to the facts, it should refer them to all the facts, so as to present the case fairly for both parties. Otherwise the jury might understand the facts stated in the instructions are the only ones necessary to be considered in deliberating on their verdict.” Appellee’s ninth instruction told the jury that if they believed from the evidence that the witness, William Sellmyer, before testifying made any statements out of court or any statements on the former trial concerning any material matter different and at variance with what he stated on the witness stand, they had the right to consider whether these facts tended to impeach his recollection or truthfulness. This instruction had a tendency to make the jury think that the court saw something especially suspicious in the testimony of this witness. This instruction should have been refused or so modified as to apply to all other witnesses in the case. Eor the errors indicated, the judgment of the trial court is reversed and the cause is remanded. Reversed and remanded.