Cobb v. Sparr

Mr. Justice Smith delivered the opinion of the court. It is urged that as a matter of fact the record fails to show (1) that the plaintiff Cobh performed any services or had any connection with the transaction resulting in the sale of defendants’ property, and (2) that appellant assented to any employment of Coulter or Cobb or agreed to pay them or either of them the commission sued for. As to the first of these contentions, the evidence shows that the plaintiff is a real estate broker in Chicago and that W. E. Coulter is one of the brokers who work in and from his office on the usual brokerage basis, doing business for the office and getting his commission out of the business transacted and closed by them; that Cobb gives Coulter a certain per centum of the commissions earned from the business brought into the office by him. Coulter had been employed in this manner five or six years prior to 1906, and was so employed while engaged in assisting in the sale of defendants’ property. The evidence tends to show that Cobb was advised of what Coulter was doing in this sale at the time, and that Coulter reported to Cobb in regard to the transaction. In our opinion the evidence is sufficient to justify the finding of the jury on this question. On the question of the employment of Coulter by the firm of Sparr & Weiss to give advice and services as claimed, the evidence, we think, leaves no reasonable ground of doubt. The evidence clearly preponderates in favor of the plaintiff on this question. It is not claimed that appellant personally took any part in the transaction. The evidence shows that she did not, and it shows further that the only specific authority given to her son by appellant, in relation to the sale of the real estate, aside from his general authority to represent her in firm matters, was to go to the office of Baird & Warner and sign the contract already prepared for a sale of the property for $90,000. On this state of facts it is contended on behalf of appellant that the authority of one partner to bind his copartners extends only to acts within the scope of the business for the carrying on of which the copartnership was formed, and hence she was not bound by Weiss’ action or by her son’s action in the matter of the sale of the real estate owned by her. With the general principle of law invoked we do not disagree. Its application to the facts of this case, however, does not command our assent for reasons which will appear later. It clearly appears from the evidence that appellant was not bound to and did not give any of her time to the partnership business. By the articles of copartnership she was relieved from that, and her son Charles Sparr was made her representative and “acted for her in all firm matters.” For this service he was paid $25 per week by the firm; and Weiss was paid the same salary. The intention of the copartners to substitute Charles Sparr for appellant in the conduct and management of the firm business is made clear by the copartnership agreement. Appellant must therefore be bound by what her agent and representative said and did in the conduct and management of the business and property of the firm. While the real estate was owned by appellant and Weiss the articles of copartnership contemplated, and indeed expressly provided, that its business was to be carried on in the property, and the use of the property by the firm for its business was clearly contemplated and intended by the owners and copartners. In pursuance of that intention the firm had been and was in the actual occupation of the premises at the time of the negotiations and sale thereof here involved. Indeed, it may be that this real estate was for all practical purposes, and in equity if not in law, the property of the firm, though it is not necessary in this case for us to pass on that question. By the terms of the partnership agreement, each of the partners contributed to the firm the entire property and assets of the former firm, composed of A. Sparr and Frank Weiss, estimated at $135,699, with liabilities of $42,220.52 which were assumed by the new firm. Whether or not the real estate was included in this estimate is a matter of inference. In consequence of this situation, and of the proposed sale of the property for $90,000 to Baird & Warner or their purchaser, three things of considerable importance to the firm were involved, namely: the payment of rent by the firm until the following May, the sale of the machinery of the firm involved in the Baird & Warner proposition, and the interruption or close of the firm business in consequence of the sale of the firm machinery and the real estate. Clearly, Charles Sparr had authority to act in all matters involving the business or interests of the firm, and when by his action and that of Weiss he obtained the use of the property for the firm until the following May, and eliminated from the proposed sale of the real estate the firm machinery, thus saving it to the firm, he was acting in the interest of the firm and for its benefit, ■ and his acts and Weiss’ acts were valid and binding upon the firm. They were enabled to accomplish this and at the same time secure a larger price for the real estate, by the knowledge, advice and services of Coulter, who was retained and employed for that purpose. Furthermore, as a result of procuring the larger price for the real estate, $15,000 of the $100,000 was set apart to pay incidental expenses and obligations of the firm. The firm thus secured the rent of the premises until the following May, retained its machinery, and received $15,000 in cash as the direct result of the knowledge, advice and services for which they agreed •to pay $5,000. Where the real estate which is claimed to be the individual property of the members of a firm, is so clearly related to firm property and business as this real estate was, and the proceeds of it, as well as the property itself, were used for the benefit of the firm, the authority of Weiss, as a member of the firm, and of Charles Sparr as the general manager of the firm and representative of appellant, was sufficient, in our opinion, to bind appellant to the contract sued on in this case. Appellant testified that she knew the property was sold for $100,000 and that she received her share of it; that she knew nothing about the machinery whether it was sold or not, but left every thing to her son, who acted for her in everything; that she knew nothing of the negotiation or sale of the property for $90,000. We find it difficult to believe that she knew nothing about the machinery as to whether it was sold or not, or that she knew nothing of the negotiation for the sale of the property at $90,000. The jury, doubtless, found the same difficulty. On the contrary, we think she knew all about the material features of the transaction, and the course of negotiations which led the defendants to suspend the proposed sale at $90,000 and stand out for the terms suggested by Coulter. And when appellant received her share of the $100,000 she knew exactly and fully how it was secured and by what agency, and was fully informed of all the material facts. The receiving and retaining of the consideration for the property was a ratification of the acts of her agent in her behalf. Upon a review of the evidence we are satisfied that the verdict and judgment are amply sustained by it, and that the judgment below is just and right. We have carefully reviewed the instructions given by the court and the alleged errors made therein. As we have said above, the result reached in this case is in our opinion just. Slight errors in instructions in such a case should not cause a reversal. Henrietta Coal Co. v. Martin, 122 Ill. App. 354; Boys v. Bernhard M. Co., 138 id. 88. We find no errors in the instructions which could have affected the conclusions of the jury on the merits of the controversy. The judgment of the Municipal Court is affirmed. Affirmed.