Harvey v. Cook , 24 Ill. App. 134 ( 1887 )

McAllister, J.

On the trial, the plaintiff below gave evidence tending to show in a general way that he had procured for Harvey Brothers 362 advertising contracts, and claimed that, under the contract with them, dated October 6, 1882, lie was entitled to a commission of $5 upon each. Ho direct evidence as to the genuineness of the signatures of the purported publishers appearing thereon, was offered; but he produced in evidence a written acknowledgment signed by Harvey Brothers, dated October 21, 1882, of the reception by them from him of sixty-six advertising contracts as per agreement at $5 each; also another dated October 25, 1882, for ninety-six and couched in the same language.

By the first branch of the first instruction given for the plaintiff the jury were directed (after a reference to said contract of October 6, 1882, authorizing the plaintiff to make the advertising contracts therein referred to) that if the plaintiff afterward, in pursuance of said authority, procured and delivered to Harvey Brothers a Large number of advertising contracts, such as he was by sa/id docu/ment authorized to malte, then the jury should find the issues for the plaintiff, and in such case the measure of damages will be the contract price agreed upon between the parties for the procuring of such advertising contracts. That instruction purports to embrace every element necessary to a recovery.

The contract of October 6, 1882, contains this stipulation: “ In consideration of the said 0. A. Cook & Oo. making such advertising contracts, we hereby agree to pay to G. A. Cook & Co. the sum of 85 on each ¿ or 25 per cent, contract for each and every contract signed by the publishers, on the delivery to us of said contracts.” ' In looking at the whole instrument, it will be perceived that aside from the • advertising contract being signed by the publishers, they were to be in accordance with a printed agreement or form for that purpose.

The generally accepted rules as to an agent’s right to commissions, are stated in Story on Ag., Sec. 331: “ The agent is entitled to his commissions only upon a due and faithful performance of all the duties of his agency in regard to his principal. For it is a necessary element in all such cases, that, as the commissions are allowed for particular services to the principal, it is a condition precedent to the title to the commissions that the contemplated services should be fully and faithfully performed.” Hoyt v. Shipherd, 70 Ill. 309.

The above instruction contains no hypothesis as respects the genuineness of signatures or of the fact of the persons purporting to have signed being in reality publishers of newspapers; and it avoids doing so by the substitution of the hypothesis that the advertising contracts were “such as he was by said document authorized to make.” What was that but the submission of a question of law to the jury ? It is manifest that the jury could determine the point thus submitted only by construction of the original written contract and of the several advertising contracts. The construction of written instruments is always a question of law.

By the second branch of the same instruction, or more properly, the second instruction for plaintiff, the court directed the jury that if, at the time of the delivery of such contracts to the defendants, no question was made about the genuineness of the signatures to such advertising contracts, and the defendants accepted said contracts as having been properly signed, or signed by the parties purporting to have signed them, then it was not necessary in the first instance for the plaintiff to introduce evidence on his part of the genuineness of such signatures.

The hypothesis embraced does not include the matter of the persons who purported to have signed, being, in fact, publishers of newspapers. The undertaking of the plaintiff was to procure for defendants advertising contracts of a particular description to be signed respectively by persons of a definite description.

The performance of that undertaking by the plaintiff was a condition precedent to his right of recovery, and the burden of proof was upon him to show such performance, or that the defendants, by some act, had lawfully discharged him therefrom. The reception by the defendants of the papers in question of plaintiff, without any question on the part of the former as to the genuineness of signatures, could have no effect to relieve the plaintiff from the burden of proof, because the law imposed no duty upon the .defendants to make such question or inquiry at that time. The law gave them such time thereafter as would, under all the circumstances, be reasonable, in which to ascertain those matters. Take, for instance, the case of a delivery under an executory contract of sale of goods of a particular quality or description, or under a sale by sample, the buyer is not bound to make inquiry at the time of delivery, but has such time thereafter as is reasonable under all circumstances in which to ascertain the true quality or description of the goods delivered. So that in order to discharge the plaintiff from performance or relieve him from the burden of proof it was necessary that something more should have been embraced in the instruction. It should have contained the hypothesis that the defendant received the papers with the intention of waiving all inquiry respecting the genuineness of signatures, or that the reception of them on their part was with the intention to retain them as in full compliance with and satisfactory fulfillment of the original contract. And such intention must have been manifested in a way to be ca¡3able of proof.

The instructions referred to werfe erroneous and misleading for the reasons stated.

We are of opinion that the defendant had the right under the general issue to show gross misconduct, fraud, negligenee and unskillfulness on the part of plaintiff in the performance of his duties as agent, and thus defeat his right to compensation. Denew v. Deverell, 3 Camp. 451; Dodge v. Tielson, 12 Pick. 328; Fisher v. Dynes, 62 Ind. 348; Prescott v. White, 18 Ill. App. 322.

The judgment must be reversed and the cause remanded.

Judgment reversed.