Rueckheim Bros. & Eckstein v. SerVis Ice Cream & Candy Co.

Mu. Presiding Justice Smith delivered the opinion of the court. The assignments of error question the correctness of the rulings of the court on the admissions , of evidence, the motions to exclude evidence, and the motion for a new trial. It is also contended that the evidence does not sustain the finding and judgment of the court. The court permitted a telephone conversation between the witness Bussell and some unknown person to be received in evidence without in any way connecting the unknown persons with the defendant, plaintiff in error, in relation to the first and second orders given. The unknown person called up Bussell and gave the order. No proof was offered to show that the unknown person was authorized by, or connected with, or even in the place of business of the plaintiff in error. This was error. The rule of the Supreme Court of Missouri in Wolfe v. Missouri Pacific Ry. Co., 97 Mo. 473, quoted with approval in Godair v. Ham Nat. Bank, 225 Ill. 572, does not apply to this case. In the Missouri case it was sought to introduce a conversation had by telephone between a witness and some person in the place of business of one of the parties to the suit, and the evidence was held admissible on the ground, that “when a person places himself in connection with a telephone system through an instrument in his office, he thereby invites communication, in relation to his business, through that channel.” But, that is far from holding the admissibility of such conversations with some person not shown to have been in the place of business of the party, and using the instrument there installed. A party may well be held responsible for what takes place in his own business office under such circumstances, but we do not think the rule should be extended to conversations over other telephones wherever situated, simply because the party has connected himself with a telephone system. The facts shown in regard to the third order differ somewhat from the other orders, according to the testimony of the witness Bussell. In that case Bussell called up the office of the defendant and requested the person who answered him to make a memorandum of the fact that he desired to talk with the person who wished to give a further order for cracker-jack; and shortly thereafter he was called up by a person who referred to what had taken place over the telephone, and gave an order. This affords grounds for the inference that the person talking with him was at the office of the defendant and acting for it, and brings that conversation within the rule in the Godair case supra, making the conversation admissible. Upon a careful review of the evidence in the record we are of opinion that it does not sustain the finding and judgment. The evidence shows that some one unknown ordered the goods delivered at Pain’s Fire Works at Sixty-third street and South Park avenue, Chicago, and that Horowitz received and receipted for the goods at that place. The defendant company was not doing business there, and had nothing whatever to do with the business there conducted by Horowitz. Horowitz was never connected in any way with the defendant company, and had no authority whatever to purchase goods in the' name of the defendant. The evidence in the record does not show that the defendant ordered the goods, the value or price of which was sought to be recovered in the action. The abstract of record so-called filed by plaintiff in error is largely a copy of the record, and contains arguments of counsel. It does not conform to the rules of court. The abstract should not be taxed in the costs of court against defendant in error. The judgment is reversed and the cause is remanded. Reversed and remanded.