Foss v. Cummings, 47 Ill. App. 665 (1893)

Jan. 30, 1893 · Illinois Appellate Court

47 Ill. App. 665

S. D. Foss et al. v. R. F. Cummings et al.

Contracts—Void as to Public Policy—Corners.

1. A combination to enhance the price of an article of prime necessity, such as wheat, or other articles necessary for food, for purposes of extortion, is against pulplic policy, although there may be no attempt to corner the market.

2. In the case presented, this court holds that the amendment of plaintiffs’ pleading has not so changed the nature of the cause that the conclusions arrived at in a former trial are not applicable to the present appeal, in view of the stipulation involved herein.

[Opinion filed January 30, 1893.]

Appeal from the Circuit Court of Cook County; the Hon. Francis Adams, Judge, presiding.

Messrs. G. W. & J. T. Kretzinger, for appellants.

Messrs. H. K. Wheeler, and Smith, Helmer & Moulton, for appellees.

Mr. Justice Waterman.

This case has before been presented to this court; the opinion of the court is reported in Cummings v. Foss, 40 Ill. App. 523. The cause having been remanded to the Circuit Court, the following stipulation was entered into:

“It is hereby stipulated by and between the parties, plaintiffs and defendants hereto, that upon the hearing of the above cause either parties to the above' entitled suit may read from the transcript of the record, certified to the Appellate Court from the former trial, all or any part of the evidence offered by them or either of them at the former hearing and trial of this cause, before his honor, Judge Tuthill, subject, however, to all objections that may be offered or urged against the admission thereof-; said objections to have the same force and effect as if said evidence was newly offered by calling the witnesses upon the stand to testify and to give evidence, and said evidence so admitted by the court as aforesaid shall have the same force and effect as if originally given by the witnesses being called upon the stand.”

The plaintiffs amended their bill of particulars and filed an 'amended declaration; this having been done, a jury was waived, and the cause submitted to the court for trial; whereupon, the evidence given upon the former trial having been read, the court found the issues and rendered judgment for the defendants.

It is now urged that the Case was, upon the second hearing, tried in a manner so variant from the trial in the first, that the issue presented is not the same as that passed upon by this court when the cause was first here.

"We fail to see how the amendment of the pleadings and the new bill of particulars have so changed the nature of this cause that the conclusions formerly arrived at are not applicable to the present appeal.

We are yet of the opinion, before expressed, that a combination to enhance the price of an article of prime necessity, such as wheat, or other articles necessary for food, for purposes of extortion, is against public policy, although there may not be an attempt to corner the market.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.