Boyd v. Schnell, 209 Ill. App. 187 (1917)

Dec. 21, 1917 · Illinois Appellate Court · Gen. No. 22,910

209 Ill. App. 187

George R. Boyd, Appellee, v. David C. Schnell, trading as T. Schnell, Appellant.

Gen. No. 22,910. (Not to be reported in full.)

Abstract of the Decision.

1. Assumpsit, Action of, § 6 ^* —when court has jurisdiction of action to recover on common counts for value of shipments of hay. In an action to recover on the common counts for the value of certain shipments of hay made by plaintiff to defendant, to which the defendant pleaded the general issue, with affidavit averring that plaintiff had agreed to make the shipments on consignment, that defendant was to sell the same,' and that the profits, if any, were to he equaUy divided between them, and that defendant had sold the hay and made full accounting therefor to plaintiff, held that the court had jurisdiction of the action, whether or not the parties were copartners in the contemplated profits, where the evidence tended to show that under the agreement plaintiff was to purchase the hay, advance the purchase price thereof and draw on defendant for same, and that his compensation was to he paid out of the profits realized from defendant’s sale of the hay.

Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.

Heard in the Branch Appellate Court at the October term, 1916.

Affirmed.

Opinion filed December 21, 1917.

Statement of the Case.

"Action by George B. Boyd, plaintiff, against David C. Schnell, trading as T. Schnell, defendant, to recover the value of certain shipments of hay made by plaintiff to defendant. From a judgment for plaintiff, for $629.18, defendant appeals.

Levisohn & Levisohn, for appellant; Alvin E. Stein, of counsel.

Charles W. Stieeel, for appellee.

* See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice McDonald

delivered the opinion of the court.

2. Appeal and error, § 1060*—when error cannot be predicated upon giving of an instruction. Error cannot be predicated upon thev giving of an instruction where the record fails to disclose on whose behalf it was given.

3. Damages, § 200*—when instruction properly refused. An instruction excluding the element of profits held properly refused where there was no evidence tending to show profits and plaintiff made no claim therefor.

4. Appeal and error, § 1514*—when improper remarles of counsel are not reversible error. Improper remarks of plaintiff’s counsel in his closing argument to the jury were not reversible error where plaintiff’s recovery was limited to moneys actually advanced by him, in an action on the common counts.