Reid v. Foster , 1890 Ill. App. LEXIS 122 ( 1890 )

Moran, J.

This was an action to recover for a quantity of silk thread sold by appellees to appellant. Appellant admit ted a part of the bill, but disputed $54.40 thereof on the ground that the goods sold were to that amount unmerchantable and inferior, and not according to the warranty given. As shown by the abstract of the evidence filed by appellant, John F. Eeid, who testified in behalf of appellant, stated that he was the agent of said Hannah M. Eeid, who is his wife, “ in the conduct of her tailoring business in the city of Chicago.” He further testified that he bought and sold goods for her and bought the goods in question in this case; that the goods turned out to be inferior in quality, and unfit for the purpose for which they were warranted; that several garments sewed with said thread ripped and failed wholly to hold together. That the agent for appellees knew when he sold the thread the purpose for which it was to be used, and warranted that it was fit for such purpose, and that he, said Eeid, objected to these goods a short time before this suit was brought.

The agent of appellees then testified that some time after the sale of the goods and shortly before the beginning of the suit, he went to the tailor store to settle the bill; that the witness, Eeid, said nothing about the goods being inferior, and offered to settle for them by giving the notes of appellant, which was declined, and that said witness, Eeid, then paid $100 on the bill. That said Eeid, on several occasions,, acknowledged the correctness of the bill and promised to pay? and never made any claim that the goods were poor until after the appeal of the case to the Circuit Court. Similar evidence as to said Eeid’s offer to settle the bill and to his making no objection as to the quality of the thread was given by another witness. The admission of such evidence was objected to and is now urged as a ground for reversal, as being in violation of the principle that admissions of an agent are not binding unless they are made as part of the res que gestee. This evidence was not admitted as admissions of the agent against the principal, but as statements and offers made by Eeid inconsistent with his testimony that the thread was infcrior, and as tending to impeach his evidence. The evidence was irregularly admitted. The proper course was to call Beid’s attention to these offers and statements when he was on the stand, and then, if he denied them, to call the witness to prove such offers.

But this irregularity did no injury to appellant, as the witness, Beid, was present in court, and was put on the stand in rebuttal to explain the offers, and state his version of the conversations or statements made by him. The main issue of fact in the case was on the question as to whether the thread was inferior in quality as claimed, and we think that upon that question the evidence fully supports the finding of the court. The error in admitting the evidence of Beid’s offers and conduct without first cross-examining him on these matters will not authorize a reversal of the judgment where it appears from the whole record that such error worked no harm, and the preponderance of the evidence (excluding that erroneously admitted) is with the party in whose favor the finding was made.

ISTo error appears which requires a reversal of the case, and the finding being right on the merits the judgment must be affirmed.

Judgment affirmed.