Gillie v. Bingham

Mr. Justice Bigelow

delivered the opinion of the court.

Two propositions of law were submitted to the trial court to be held as the law of the case: First, that appellee was not agent of appellant in performing the legal services rendered; second, that the action would not lie for want of privity of contract.

The court declined to hold the propositions to be the law of the case, and this action of the court is assigned as error.

But it appears to us that neither of said propositions were purely propositions of law; they were rather in the nature of requests to find specially the non-existence of certain ultimate facts of the case. Alexander v. Alexander, 52 Ill. App. 195; First Nat. Bank v. Northwestern Bank, 152 Ill. 296.

If this case had been tried before a jury, and these propositions had been given by the court as instructions, they would in effect have withdrawn the case from the jury. The law is settled that, on demurrer to the evidence, not only what the testimony proves, but every inference that may be legitimately drawn from the evidence, stands admitted. Bartelott Co. v. International Bank, 119 Ill. 259; Joliet, Aurora & Northern Railway Co. v. Velie, 140 Ill. 59. So that the most favorable view that we can take of these so-called propositions of law is that they are in the nature of a demurrer to the evidence stating these specific reasons that ought to prevent a recovery.

The evidence in this case shows that appellants were told this was not an ordinary collection; if this is so they knew they had no right to rely upon their special contract with Snow Church Company, and the inference may well be drawn that Snow Church Company acted as a mere intermediary agent in this matter between the parties to this suit. There is an entire absence of evidence that appellants paid Snow Church Company anything on their collections according to the contract rates, evidenced by the collection contract, and yet appellants have received certain lands in part satisfaction of their claims. The evidence shows they did not permit Snow Church Company to select certain other attorneys to do this work, and that appellee was satisfactory to them.

Appellants knew that Snow Church Company would not personally attend to the business matters in question. Upon the evidence, as it stands, it became a question of inference and reasoning whether Snow Church Company had authority to employ appellee to act on behalf of appellants, so as to bring in between the parties the privity of contract necessary to the maintenance of this action, or whether Snow Church Company employed appellee on their own account to assist them, and thereby exclude the privity of contract. Mechem on Agency, Secs. 192, 197, 690, 691.

There is evidence to support each theory (Anderson v. Alton Bank, 59 Ill. App. 589), and we can not say that the court erred in finding that privity of contract existed between the parties.

We think this case clearly differs from Bradstreet v. Everson et al., 72 Penn. 124, in this, that in that case the written receipt seems to have been the only authority for the employment of the agent, whereas, in this case, there is evidence tending to show that Snow Church Company had authority to engage the services of appellee for account of appellants. See Waterloo Milling Co. v. Kuenster & Co., 58 Ill. App. 61.

The judgment of the Circuit Court is affirmed.