Shober & Carqueville Lithographing Co. v. Kerting , 107 Ill. 344 ( 1883 )

Mr. Justice Mulkey

delivered the opinion of the Court:

This is an appeal from a judgment of the Appellate Court for the First District, affirming a judgment of the Superior Court of Cook county, in favor of Frank Kerting, the appellee, and against the Shober & Carqueville Lithographing Company, the appellant, for the sum of $1157.23, on account of commissions claimed to be due the .former for soliciting and obtaining lithographing orders for the company.

The material facts essential to an understanding of the questions discussed are, in substance, as follows: On the 1st of January, 1874, anci prior thereto, Charles Shober and Edward Carqueville were carrying on the lithographing business as co-partners in the city of Chicago, under the firm name of Shober & Carqueville. On that day appellee entered their service and employment for the purpose of-soliciting orders for lithographing work, on which he was to receive certain specified commissions as compensation for his services. The business was continued, apparently to the satisfaction of all parties, until the 9th of April, 1877, when the partnership seems to have ceased, and a joint stock company organized in its stead, under the name of the Shober & Carqueville Lithographing Company, and the business of lithographing was thereafter carried on in, the name of the corporation substantially as it was before. The company took charge of all the partnership assets, paid some of the firm debts, and filled the old orders for work. Appellee and other employés of the firm continued in the employment of the company, as though no change had occurred.

In addition to the inference to be drawn from the foregoing facts, there is direct testimony tending to show that the appellant company, upon its organization, in consideration of the partnership property and assets having been turned over to it, undertook and agreed to pay all the firm debts, including the demand of appellee, and this was the vital and controlling question on the trial of the cause in the Superior Court, and consequently must have been equally so in the Appellate Court. Upon this and all other issues of fact both courts have found adversely to appellant, and by their finding, of course, he is concluded. It remains to consider what, if any, errors of law are presented by the record whereby the appellant has been injured or prejudiced.

It is first complained that the Superior Court erred in refusing to sustain appellant’s motion to strike out of appellee’s bill of particulars all items for services rendered before the organization of the corporation. There was clearly no error in this. Whether those items should have been allowed or not depended upon whether the corporation, for a valuable consideration, had assumed their payment, and this was a question appellee had .a* constitutional right to have submitted to a jury, which would have been defeated had the motion prevailed.

It is also objected that the court erred in admitting in evidence the admissions of the officers of the company. This objection is not well founded. No exception was taken to it at the time, nor was any motion subsequently made to exclude it. Indeed, the abstract shows that the evidence complained of was mainly called out upon cross-examination by appellant’s own counsel, and hence the company has no right to complain, even if the evidence was irrelevant, as to which we express no opinion.

The only other objection which we deem worthy of notice •is'that made to plaintiff’s second instruction. It is as follows :

“The jury are instructed, that if'they find, from the evidence, that the defendant purchased the business and assets of Shober & Carqueville, and as a part of the consideration paid therefor assumed the debts of said firm of Shober & Carqueville, that that is sufficient consideration for the promise, if one was made, to pay the debts of said firm, as aforesaid ; and if you find, from the .evidence, that said firm of Shober & Carqueville was indebted to the plaintiff in this case, and that the defendant assumed the -same, and agreed with the plaintiff to pay the same to him for the consideration as above stated, then the plaintiff is entitled to recover the amount of such indebtedness from the defendant in this suit, unless you find, from the evidence, that the defendant has paid the same. ”

The abstract fails to show that any exception was taken to this instruction on the trial, and we will not stop to look into the record to see whether the abstract is correct in this respect, for, conceding it is not, we see no substantial objection to the instruction. There was clearly sufficient evidence .before the court upon which to -base it, and the conclusion of law which it announces, we think, is sound.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.