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1 of 6 DOCUMENTS

GEORGE WRIGHT YOUNG v. JOHN V. FARWELL et al.

Supreme Court of Illinois

146 Ill. 466; 34 N.E. 373; 1893 Ill. LEXIS 907

June 19, 1893.

PRIOR HISTORY: [***1] APPEAL from the floors and departments, with distinct heads and
Appellate Court for the First District; -- heard in that sub-heads, but the entire business was under one general
court on appeal from the Circuit Court of Cook county; management. The complainant, [***2] Young, had
the Hon. O. H. HORTON, Judge, presiding. been in the employment of appellees for a number of
years, and for some time prior to the making of the
DISPOSITION: Judgment affirmed. alleged contract he had been sub-head of the department
of dress goods, silks and velvets, W. C. Rice being at the
head of the department. During the year 1888 he
COUNSEL: Mr. A. D. CURRIER, for the appellant. received a salary of $2250. A few days before the close
of the year 1888 he was notified by John V. Farwell, Jr.,
Messrs. FLOWER, SMITH & MUSGRAVE, for the who was manager and employed all the hands on certain
appellees. floors, that for the year 1889 his salary would be reduced
to $2000, and he was employed for that sum. In the
OPINION BY: CRAIG [*469] month of May, 1889, Rice resigned his position
as manager of the department of dress goods, silks and
OPINION velvets, and in the month of June, Farwell and Young had
an interview in regard to the employment of Young from
[*468] [**373] Mr. JUSTICE CRAIG delivered
July 1 to January 1, to take the position made vacant by
the opinion of the Court:
the resignation of Rice. At this interview a verbal
This was a bill brought by George Wright Young, contract was made, but no person was present to witness
against John V. Farwell & Co., the appellees herein, for the contract, and no one knew what the contract was but
an accounting under an alleged verbal contract, by which the two contracting parties. It appears from the evidence
it is claimed he was to act as manager of the department of both Young and Farwell, that Young insisted upon an
of silks and velvets in appellees' wholesale establishment increase in his salary. He testified that he insisted on
in the city of Chicago for a period of six months, from $4000, while Farwell [***3] says the amount insisted on
July 1, 1889, to January 1, 1890, for a fixed salary, and in was $3000. Farwell, however, refused to increase the
addition thereto, under certain conditions, an interest in fixed salary beyond $2250 a year, and it was finally
the profits of the department in which he was employed. agreed that the fixed salary should be $2250 per annum
for the six months. In addition to this amount it was
At the time of making the alleged contract the understood by the parties that Young should have an
appellees [**374] were conducting a large wholesale dry additional sum from the profits realized from the
goods house in Chicago. The house was divided into department which he was employed to manage, but the
 Page 2
146 Ill. 466, *469; 34 N.E. 373, **374;
1893 Ill. LEXIS 907, ***3

parties do not agree as to the terms of this part of the surplus above past percentages. Or shall we take the
contract, and from the evidence of the two parties there is evidence of complainant on his second examination? If
much doubt and uncertainty in regard to what the real so, then there was to be a division of profits made in the
contract was. Indeed, the statements made by department over the past average percentage of profits
complainant himself in reference to the terms of the made by complainant. There is as much reason for
contract are not harmonious. In his letter of February 21, adopting one of these statements as the other, and in
1890, he wrote appellees as follows: "I wish to recall, and arriving at a conclusion in regard to what the contract
for your consideration, the verbal contract with the writer, was, the question is left in so much doubt and uncertainty
of last June. As a compromise for your not doing more that a court can not reasonably [*471] determine, from
than reinstating the amount of salary of previous two the contradictory [***6] statements, what the contract
years, you offered to divide if I did well and the profits really was.
were good under my management." On July 5 he again
writes as follows: "You recollect he (I) resigned June 21, But the terms of the alleged contract are rendered
1889, because of a difference of $1750 increased salary more uncertain when the evidence of Farwell, the other
asked for, and other [***4] good reasons; then you contracting party, is considered. He denies that he agreed
offered as a compromise, in lieu of the $1750, to divide to give any definite share of the profits, but says that the
with him (me) the surplus above past percentages made." salary for the six months was fixed on the basis of $2250
The complainant, in his bill, alleged he was to have an a year, -- $1125 for the six months, -- and in addition he
interest in the profits, "which interest it was agreed agreed with complainant, if he did well they would give
should be an equal [*470] division between orator and him a bonus; and in his letter to complainant of February
J.V. Farwell & Co. of all the profits that should accrue 25, 1890, he says: "By my remarks to you on the 21st of
over and above the past average of profits in the business last June I meant that if the department did only what
of the department of silks and velvets under the ought to be done by any good manager, you would not
management of orator." In his deposition taken receive any additional compensation, but that if it made
September 1, 1891, complainant testified to the contract more than its regular percentage I was willing 'to divide,'
as follows: "Farwell said, 'I will do this with you: we will not in two equal parts, the extra amount, but to give you
divide with you all the profits made over the past part of it. You made about $2500 over your percentage,
percentage.' I knew the best I had ever done was eight to and I am willing to give you ten per cent of it, or $250."
twelve per cent, but more frequently from ten to eleven
We are satisfied from the evidence, after giving due
per cent profit. Therefore I accepted his terms, and he
weight to all of it, that appellees agreed to give appellant
immediately arranged for me to go to New York to buy
something in addition to his salary of $2250 per annum,
and sort up goods that very next day." Upon a subsequent
but what amount was to be paid, [**375] or under what
examination the complainant, in detailing the terms of the
terms and conditions [***7] complainant was to receive
contract, testified as follows: "Farwell said, 'I will divide
any sum over and above his fixed salary, is left in such
with you all the profits that your department makes over
your past average percentage of profits.'" As to the [***5] doubt and uncertainty that it is impossible to say, from
the evidence in this record, that the minds of the parties
average percentage of profits the complainant testified:
ever met upon any definite proposition, and if the minds
"They varied from eight to twelve per cent. It was
of the parties never met upon some definite proposition,
always according to the elements and the crops, which
under which the complainant was to receive a part of the
made the good or the bad seasons."
profits, we do not understand upon what principle he can
It will be observed that there is a radical difference maintain a bill for an accounting. It is the plain duty of
between the different statements of the complainant in courts to enforce contracts made by parties when the
regard to what the contract was. Which one of the terms and conditions of the contract are established by
statements shall be adopted as the contract? Shall we evidence, but courts can not make contracts for parties
adopt the statement contained in his letter of February and then enforce such contracts. Here it devolved upon
21? If so, then there was to be a division of complainant complainant to allege [*472] in his bill a contract, and
did well and the profits were good under his establish that contract by evidence. This he has failed to
management. Or shall we accept complainant's statement do.
of July 5? If so, then there was to be a division of the
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146 Ill. 466, *472; 34 N.E. 373, **375;
1893 Ill. LEXIS 907, ***7

We think the decree of the circuit court was correct, and

Time of Request: Saturday, February 23, 2019 22:38:45 EST

Print Number: 2827:662462177

Send To: LUMAGUE, BLYTHE