Dean & Son, Ltd. v. W. B. Conkey Co. , 1913 Ill. App. LEXIS 752 ( 1913 )

Mr. Presiding Justice Gridley

delivered the opinion of the court.

It is contended hy counsel for defendant that, under the issue formed hy defendant’s plea of nul tiel corporation, plaintiff did not sufficiently prove that it was a corporation, or, to use counsels’ language, “did not meet the burden which the law placed upon it.” “When this plea is interposed, the burden of proving corporate existence is cast on the plaintiff corporation. But this plea does not impose the burden upon the plaintiff of proving, that it was in all respects a perfectly legal corporation. It is sufficient, for a recovery upon the issue presented by that plea) to make proof that the plaintiff corporation had a de facto existence. An association may be regarded as a de facto corporation, where there is a law authorizing the creation of corporations of its class and powers, and where there is an attempt in good faith to comply with the law.” Cozzens v. Chicago Brick Co., 166 Ill. 213, 215; Marshall v. Keach, 227 Ill. 35, 44. “The introduction of the charter of a corporation, with the proof of the exercise under it of the franchises and powers thereby granted, is sufficient to establish the existence of a corporation de facto.” Marshall v. Keach, supra. But counsel for defendant argue that in this case “there was no sufficient foundation for the introduction of the supposed English statute books in evidence;” that, while it is provided by section 10 of chapter 51 of the statutes of this state that the printed statute books of this state, of the several states and territories, and of the United States, purporting to be printed under authority, shall be evidence, etc., no mention is therein made of the statutes of foreign countries; that the supposed English statute books introduced in evidence “did not prove themselves;” that the testimony of the witness Bennington (he being only a chartered public accountant and not an admitted or practicing lawyer), was insufficient properly to prove the authenticity of such books. The statutes of a foreign country “must be proved as facts, and their existence and validity established by satisfactory evidence. " * * By the general rule prevailing in the United States, printed copies of foreign statutes are admissible where shown to the reasonable satisfaction of the court to be authentic. * * * In some cases the evidence of persons who are neither lawyers nor public officers has been admitted in regard to such portions of the statute law as they have been in a position to become acquainted with.” 36 Cyc. 1255. We are of the opinion that in this case the English statute books in question were properly received in evidence. Jones v. Maffet, 5 Serg. & B. (Pa.) 523; American L. I. & T. Co. v. Rosenagle, 77 Pa. St. 507; O’Keefe v. U. S., 5 Ct. of Cl. 674; Ennis v. Smith, 14 How. (U. S.) 400, 429; Nashua Sav. Bank v. Anglo-American Co., 48 C. C. A. 15, 108 Fed. Rep. 764; U. S. v. Certain Casks of Glass Ware, 4 Law Rep. 36; Dawson v. Peterson, 110 Mich. 431; Canale v. People, 177 Ill. 219, 223; Figge v. Rowlen, 185 Ill. 234, 238. Counsel further argue that, assuming the statute books “contained genuine Acts of Parliament, there was no competent proof that plaintiff was organized or existed as a corporation under any of such acts.” Under the facts as disclosed by this record, we cannot agree with counsel. Barber v. International Co. of Mexico, 73 Conn. 587. We think that the evidence sufficiently established plaintiff's existence as a corporation de facto, and, hence, the objection, that there was not sufficient proof of plaintiff’s corporate existence, is without force. Cozzens v. Chicago Brick Co., supra.

It is next contended by counsel for defendant that the action cannot be maintained because plaintiff made the contract in question in Illinois and otherwise transacted business and exercised corporate powers in Illinois, in violation of the provisions of the act relating to foreign corporations. Counsel cite the "case of United Lead Co. v. Reedy Elevator Co., 222 Ill. 199. That case is not in point. The plaintiff in this case made and delivered a written proposition to defendant in Chicago. That proposition was subsequently accepted by defendant in New York provided plaintiff would agree to certain changes therein. Plaintiff, by its managing director and while the latter was in New York, agreed in writing to the modifications, and subsequently plaintiff, in London, confirmed in writing the contract as modified. It was not a contract made in Illinois. And we do not think, under the facts of this case and the recent decisions of our Supreme Court, that plaintiff is precluded from maintaining the present action. Alpena Portland Cement Co. v. Jenkins Co., 244 Ill. 354; Finch v. Zenith Furnace Co., 245 Ill. 586; Lehigh Portland Cement Co. v. McLean, 245 Ill. 326; Booz v. Texas & Pacific Ry. Co., 250 Ill. 376.

It is further contended by counsel that the trial court erred in directing a verdict for plaintiff at the conclusion of all the evidence, and for the reason that the evidence was such as required the court to submit to the jury, under proper instructions, the question whether or not there was an account stated between the parties. In 1 Am. & Eng. Ency. L. & P., p. 688, it is said:

“An account stated is an agreement between parties who have had previous transactions of a monetary character, that all the items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for the payment of such balance. * * * (p. 689) In stating an account, as in making any other agreement, the minds of the parties must meet. * * * (p. 693) The meeting of the minds of the parties upon the correctness of ah account stated is usually the result of a statement of account by one party and an acquiescence therein by the other. The form of the acquiescence or assent is, however, immaterial, and may be implied from the conduct of the parties and the circumstances of the case. '* * * (p. 699) Where an account is rendered by one party to another and is retained by the latter beyond a reasonable time without objection, this constitutes a recognition by the latter of the correctness of the account and establishes an account stated. * * * (p. 716) An account statéd is in the nature of a new promise or undertaking, and raises a new cause of action between the parties. * * * (p. 723) It is deemed conclusive both at law and in equity unless impeached for mistakes or fraud. * * * (p. 725) The defense to an action upon an account stated must relate to it and not to matters of anterior liability, except in so far as they constitute a foundation for the introduction of evidence to the real substantial defense impeaching the settlement for fraud, error, or mistake. * * * (p. 731) The burden of proof is upon, the party seeking to open an account stated for fraud, or to surcharge or falsify such an account on the ground of omission or mistake. * * * The fraud or mistake must be clearly shown. * * * (p. 723) Where the facts tending to show the statement of account are undisputed, the question as to whether the transaction amounts to an account stated is for the determination of the court, as where the entire evidence consists of correspondence. ’ ’

The law, as stated in the text book referred to relative to accounts stated, we believe to be the law of this state. In State v. Illinois Cent. R. Co., 246 Ill. 188, page 241, it is said:'

“A stated account is an acknowledgment of an existing condition of liability of the parties, from which the law implies a promise to pay the balance thus acknowledged to be due. * * * It may be impeached for fraud or mistake. The general rule is, that in an application to open a stated account the plaintiff must either charge fraud or state particular errors. * * * (p..242) 6 A person seeking to open a settled account must specify in his claim either errors of considerable extent, both in number and amount, or at least one important error of a fraudulent nature.’ * * * (p. 243) The authorities seem to be a unit in holding that mistakes or errors must be specifically alleged and proved. * * * (p. 246)

In ordinary business transactions, if an account has been transmitted from one individual to another it will be deemed a stated account- from the presumed approbation or acquiescence of the parties, unless an objection is made thereto within a reasonable time-. * * * When the facts are undisputed the question is for the court, but when the facts are in dispute in a common law action the question should be submitted to the jury under proper instructions.” See also Northwestern Fuel Co. v. Western Fuel Co., 144 Ill. App. 92; Wurlitzer Co. v. Dickinson, 153 Ill. App. 36; Pickham v. Illinois, I. & M. Ry. Co., 153 Ill. App. 281.

In Dick v. Zimmerman, 207 Ill. 636, 639, it is said:

“In an action upon an account-stated, the original form or evidence of the debt is unimportant, for the stating of the account changes the character of the cause of action, and is in the nature of a new undertaking. The action is founded, not upon the original contract, but upon the promise to pay the balance ascertained.”

We are of the opinion that the evidence in this case clearly showed that at least as early as March 16,1908, the defendant was indebted to plaintiff upon an account stated in the sum of $3,048.53, that there was no evidence tending to impeach the settlement for fraud or mistake, and that, under the facts of this case, and under the law, the court rightly directed a verdict for plaintiff. As shown by plaintiff’s amended bill of particulars, the amount of plaintiff’s claim, $3,048.53, was made up of two principal items, viz..: $2,590 for royalties for period ending December 31, 1907, and $458.53 for certain merchandise (less allowance). On May 17, 1907, plaintiff by letter rendered a detailed account to defendant showing that the amount, which would be due and payable plaintiff under the provisions of the contract on February 15, 1908, for •mini-m-nm royalties for the period ending December 31,1907, was $2,590, and claiming that $676.24 was due plaintiff for merchandise previously furnished defendant. On July 12th defendant acknowledged receipt of plaintiff’s letter, but made no objections to plaintiff’s figures as to amount stated to be due for merchandise or for said royalties to become due. On September 23rd, when Mr. Dean met Mr. Conkey, president of defendant, in Chicago, the latter raised certain objections to the amount claimed for merchandise, and a definite amount was then fixed, viz.: $458.53, as the amount due plaintiff for said merchandise. Mr. Con-key made no objections at that time as to the amount plaintiff claimed would be due for royalties on February 15, 1908, viz.: $2,590, but on the contrary he, on behalf of defendant, on said September 23, 1907, wrote plaintiff: “We will settle our royalty account with you in full when due, although we may possibly ask you for time allowance.” On February 26, 1908, plaintiff again rendered a detailed statement of the amount for minimum royalties, $2,590, due on February 15th, for the period ending December 31, 1907,' and of the amount, $458.53, due for merchandise as agreed. On March 16, 1908, defendant acknowledged receipt of this detailed statement, made no objections to the total amount claimed to be due, $3,048.53, but on the contrary admitted the correctness of the amount by requesting plaintiff, on account of defendant’s financial troubles, to “divide the payment of this first year’s royalty into two years,” and suggesting that defendant be allowed to send a six months note for half of the amount and to pay the balance “nextyear.” Plaintiff replied to the effect that the best they would do, as to extending the payment of the amount due, was the acceptance of a 4 months’ note for half of the amount and a 9 months’ note for the other half. The defendant did not accept this proposed extension of payment of the amount due, but, by letter dated May 12th, made an entirely new proposition of settlement, suggesting the payment of a less amount than had previously been agreed to, and the return to plaintiff of the samples and transfers then in the possession of defendant, which proposition plaintiff refused to consider. Counsel for defendant argue that this latter correspondence shows that the minds of the parties did not meet as to the amount due. To this we cannot agree. It is clear that the minds of the parties met on March 16, 1908, as to amount due from defendant to plaintiff. The defendant then asked for more time within which to pay that amount than plaintiff was willing to grant. The defendant then proposed a different settlement than that previously agreed to by the parties, but plaintiff refused the proposition.

There was some testimony introduced by defendant tending to show want or failure of consideration for defendant’s promise to pay the royalties stipulated for in the original contract, but'counsel for defendant state in their printed reply brief that this testimony was only “pertinent to the supposed cause of action upon the original contract and was not pertinent to the supposed cause of action upon the account stated.” We agree with this statement and also the further statement of counsel that “it is obvious that the judge directed a verdict on the theory that there was an account stated.” This being so, the said testimony was not proper for a jury’s consideration on the issue as to an account stated.

Counsel'for plaintiff have assigned cross errors to the effect that the trial court erred “in refusing to instruct the jury to include in its verdict interest at 5% per annum on $3,048.53 from March 16, 1908, to the day on which the verdict was rendered.” Such assignment presents the question for our consideration. Dickson v. Chicago, B. & Q. R. Co., 81 Ill. 215; Street v. Thompson, 229 Ill. 613,620. Plaintiff asks that the judgment be reversed on this account, and that this court enter judgment for the above mentioned amount, plus interest thereon at the above mentioned rate from said March 16, 1908, or that this court remand the cause with directions to the Municipal Court to enter a judgment in such amount. Section 2 of chapter 74 of our statutes provides: ‘ ‘ Creditors shall he allowed to receive at the rate of five (5) per centum per annum * * * on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance.” See Hartshorn v. Byrne, 147 Ill. 418; Luetgert v. Volker, 153 Ill. 385, 390. On the trial, plaintiff introduced evidence showing that interest on the sum of $3,048.53, at five per cent, per annum, from March 16, 1908, to the day of the trial amounted to $467.26. As before stated, we are of the opinion that the trial court, at the conclusion of all the evidence, properly directed a verdict for the plaintiff for said principal sum of $3,048.53, and if plaintiff had not assigned cross errors we would affirm the judgment. We are also of the opinion, however, that the court, in its instruction to the jury, should have gone further and directed the jury to assess plaintiff’s damages at said principal sum plus the proper interest. 6‘In some jurisdictions the court will increase the amount of a judgment where it is for a less sum than the undisputed evidence shows plaintiff to be entitled to,—as, for instance, where there is an obvious error in regard to the allowance of interest.” 3 Cyc. 439. Had this case been tried by the court without a jury we could, under the authority of several Illinois decisions, enter judgment in this court against the defendant for said principal sum including interest. United Workmen v. Zuhlke, 129 Ill. 298, 307; Manistee Lumber Co. v. Union Nat. Bank, 143 Ill. 490, 504; City of Chicago v. Wheeler, 25 Ill. 478, 482; Ives v. Muhlenburg, 135 Ill. App. 517, 524; Straus v. Citizens’ State Bank, 164 Ill. App. 420, 431, affirmed 254 Ill. 185. In the Zuhlke case, supra, Florentina Zuhlke brought suit in assumpsit upon a beneficiary certificate issued to her husband during his lifetime, which provided that at his death the sum of $2,000 should be paid to her. The cause was tried before the court without a jury, resulting in a finding and judgment in her favor for $2,000, without interest, which judgment was affirmed by the Appellate Court (30 Ill. App. 98). On the appeal of the society to the Supreme Court, she assigned as cross-error that she was allowed no interest. It was in evidence that on October 24, 1884, she gave the society written notice of her husband’s death on October 15, 1884, and made written demand for the payment of the $2,000. The Supreme Court said (p. 307): “We know of no reason why she is not entitled to interest from the date of such notice at the rate bf six per cent, per annum. * * * The judgments of the Circuit and Appellate Courts are correct as far as they go, but they should have allowed interest. The interest on $2,000 at the above rate from October 24, 1884, to the present term of this court is $553.33. Judgment is therefore hereby rendered in this court in favor of the appellee for $2,553.33.” In City of Chicago v. Wheeler, supra, actions in assumpsit were commenced by appellees to recover the damages, as awarded by commissioners, which appellees had sustained by the appropriation of their real estate to the use of the city of Chicago in the extension of La Salle street. The suits were tried before the court without a jury, resulting in judgments for appellees. In the Supreme Court they assigned as cross error that the court should have allowed interest on the amount of damages awarded them by the assessment. The Supreme Court held that interest was allowable under the statute upon money withheld by an unreasonable or vexatious delay in payment; that when appellee’s property, which had been condemned for a street, became the property of, the city for the public use the city owed appellees the amount of the damages awarded, which it was bound to pay within a re.asonable time; that a delay of more than two years in making such payment was unreasonable; and that the trial court erred in not allowing interest to appellees from June 9, 1858, that date being two years after the confirmation of the commissioners’ report. And the court said (p. 482): “We shall reverse the judgments below, and as the amount which these appellees are entitled to receive, depends upon computation only, we shall render the proper judgments here.” The court then stated what they found the proper amounts to be after making the computations, and entered judgments in those amounts against the city.

But counsel for defendant contend that, even though this court would have the power, had the present case been tried before the court without a jury, here to enter judgment in favor of the plaintiff for said amount of .$3,048.53, plus interest at the rate of five per cent, per annum from March 16, 1908, we have no power so to do, or to remand the cause with directions to the trial court to enter a judgment including said interest, where the cause was tried by a jury; that in such a case, where the judgment of the trial court is reversed for an error of law, this court can only remand the cause for a new trial. In support of their contention counsel cite, among others, the cases of City of Spring Valley v. Spring Valley Coal Co., 173 Ill. 497, 506; Thomas v. Wightman, 129 Ill. App. 305, 307; Clarke v. Supreme Lodge, 189 Ill. 639; Osgood v. Skinner, 186 Ill. 491; Kanawha Dispatch v. Fish, 219 Ill. 236, 240; Rigdon v. More, 242 Ill. 256. In our original opinion, filed April 3, 1913, we took this view of the question and reversed the judgment and remanded the cause,, for further proceedings. Plaintiff filed a petition for a rehearing which was allowed. After further consideration we have reached the conclusion that the judgment of the trial court should be affirmed but modified, and that judgment for the plaintiff be entered here for said sum plus interest. In People v. Board of Supervisors, 125 Ill. 9, at page 21, it is said:

“The mere ascertaining of an amount by the multiplication, addition or subtraction of given numbers, presents no question of fact for a jury. In such cases there can be but one result, and the court may either itself perform the labor of ascertaining it, or intrust that labor to any competent individual. In legal presumption, the court knows what is the result. It is upon this principle, that where an action is brought for a sum certain, or which may be made certain by computation, the court can enter judgment for the plaintiff for the amount of his damages, without a writ of inquiry. 2 William’s Saunders, 107a, notes b, c; Renner v. Marshall, 1 Wheat. 215, 216; Rust v. Frothingham, Breese, 331.”

In Wilmans v. Bank of Illinois, 6 Ill. (1 Gilm.) 667, an action in debt was brought by the bank upon a note for money loaned. The defendants filed four pleas, all in substance denying the corporate existence of the bank, to which pleas a general demurrer was sustained and a judgment was rendered on the demurrer for an aggregate sum, including the debt, interest and damages, without distinguishing the amount of either. The Supreme Court held that for this reason the judgment should be reversed. The court further said (p. 671):

“But as we can ascertain in this case, what judgment ought to have been rendered by the court below, it is competent for this court to enter that judgment here, without subjecting the party to the expense of remanding the case for that purpose.”

In Pearsons v. Bailey, 2 Ill. (1 Scam.) 507, an action in assumpsit was commenced by Bailey, surveyor for Cook county, to recover of the defendants the sum of $112 for money paid to chainmen and the sum of $420 for surveying and platting town lots in the town of Canal Port. The cause was tried before a jury and a verdict and judgment rendered in favor of Bailey for $532. During the trial the defendants' asked the court to instruct the jury that under the statutes Bailey could not recover for money paid to chainmen, which instruction was refused. The Supreme Court said (p. 511):

“From this construction of these statutes, it results, that the court below decided erroneously, in refusing the instruction asked; and for this reason, the judgment below is reversed with costs. But as the bill of exceptions enables this court to ascertain the sum that would have been recovered, if the instructions had been given, it is unnecessary to send this case back for a new trial. Judgment is accordingly rendered in this court for $420; for which sum and the costs of the court below, Bailey is entitled to an execution.”

In the present case, as stated by counsel for defendant in their brief, “it is obvious that the judge directed a verdict for Dean & Son on the theory that there was an account stated,” and, as above stated, we think that the evidence clearly showed that at least as early as March 16, 1908, the defendant was indebted to plaintiff upon an account stated in the sum of $3,048.53, and that the trial court rightly directed a verdict for the plaintiff on that theory; This being so, under section 2 of chapter 74 of our statutes above referred to. plaintiff was entitled to interest from said date on said sum at the rate of five per cent, per annum, and the trial court erred in refusing to instruct the jury accordingly. Inasmuch as the amount of interest on said sum from srld date to the present date can be easily computed, no reason is perceived why, under the facts of this case, we should not here enter a judgment including such interest, as was done in United Workmen v. Zuhlke, supra. We do not think that the fact that the present case was tried by a jury prevents our so doing. The trial court should have instructed the jury to include the interest in their verdict, and the court erred in not so doing when requested by plaintiff’s counsel at the conclusion of all the evidence. Had this been done a judgment in the proper amount would have been entered. “The right of a trial court to direct a verdict is one of the incidents of a trial by jury.” City of Spring Valley v. Spring Valley Coal Co., 173 Ill. 497, 507. The interest on the sum of $3,048.53, at the rate of five per cent, per annum, from March 16, 1908, to the present date, May 8, 1913, amounts to $784.08. Judgment is therefore hereby rendered in this court against W. B. Conkey Company, appellant, in favor of appellee, Dean & Son, Limited, for $3,832.61.

Judgment affirmed and modified.