{
  "id": 2469813,
  "name": "Joseph D. Foreman & Company, Plaintiff-Appellee, v. Mike Neri, Defendant-Appellant",
  "name_abbreviation": "Joseph D. Foreman & Co. v. Neri",
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    "judges": [],
    "parties": [
      "Joseph D. Foreman & Company, Plaintiff-Appellee, v. Mike Neri, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE LEIGHTON\ndelivered the opinion of the court:\nThis appeal is from a judgment entered in a suit to recover the balance due on goods and merchandise. Plaintiff-appellee, Joseph D. Foreman & Company (hereafter called plaintiff), sued defendant-appellant Mike Neri (hereafter called defendant), alleging that defendant owed plaintiff $3,468.79 \u201c[f]or goods and merchandise sold to the defendant by the plaintiff at defendant\u2019s insistence and request.\u201d Defendant answered, denying he was \u201c[ijndebted to the plaintiff * * * in any amount whatsoever * * *.\"\nThe case came for trial. Jury was waived. Two witnesses testified. They were the persons involved in the transaction: Joseph D. Foreman (plaintiff\u2019s president, who was also salesman of the goods and merchandise) and defendant. It was plaintiff\u2019s theory that defendant was the buyer of its goods and merchandise. It was defendant\u2019s contention that Neri Brothers, Incorporated was the buyer. After hearing the two witnesses, the trial judge found for the defendant.\nPlaintiff then filed a post-trial motion praying that the judgment in favor of defendant be vacated, one in its favor be entered, or in the alternative, that a new trial be granted because there was no evidence that when plaintiff dealt with defendant, it knew he was acting as an agent. After talcing the motion under advisement, and \u201c[u]pon reconsideration * \u00b0 following examination of the transcript of the testimony and the report of proceedings # the court granted the motion, vacated the judgment, found the issues in favor of plaintiff and entered judgment that it recover from defendant the sum of $3,468.79.\nDefendant then filed a post-trial motion praying that the judgment for plaintiff be vacated, one in his favor be entered, or in the alternative, that a new trial be granted because there was no evidence that plaintiff dealt with defendant as an individual. The evidence, defendant alleged, established that \u201c[pjlaintiff was at all times dealing with a corporate body known as \u2018Neri Bros.\u2019\u201d The motion was denied. Defendant filed his notice of appeal. A short time later, he filed a \u201cmotion to supplement the record\u201d with the photocopy of a $600 check that Neri Brothers, Incorporated gave plaintiff during the time the goods and merchandise were sold. Defendant claimed that this check proved plaintiff knew it was dealing with a corporation. The motion was denied.\nTwo issues are presented for review. (1) Whether the evidence supports the trial court\u2019s finding that plaintiff sold its goods and merchandise to defendant as an individual and not to Neri Brothers, Incorporated. (2) Whether the trial court erred in refusing to supplement the record with the tendered cancelled check, a document which supported defendant\u2019s claim that plaintiff dealt with a corporate entity and not with defendant as an individual.\nOn the first issue, defendant contends the evidence does not support the finding that he, not Neri Brothers, Incorporated, was the buyer of plaintiff\u2019s goods and merchandise. Joseph D. Foreman testified that during the period in question he represented plaintiff in doing business with defendant. He denied that plaintiff dealt with Neri Brothers, Incorporated. \u201c[O]ur firm, sold materials to Mike Neri, water works materials, pipes, fittings, valves and hydrants * * *.\" 23 invoices were sent to defendant at his home, the place where he also maintained his office. However, with possibly two exceptions, the invoices were sent to \u201cNeri Bros.\u201d Each invoice billed \u201cNeri Bros.\u201d In some instances, an invoice contained the name of the contractor of the job where the goods and merchandise were delivered.\nDefendant, on the other hand, testified that it was \u201c[a]s Neri Bros., Inc. [that he had] dealings with the plaintiff.\u201d In fact, a payment on account was made to the plaintiff by a check of the corporation. Neri Brothers, Incorporated was organized in 1964. Defendant said that his brother Com was the other \u201cmember\u201d of the corporation. The two of them did business under the corporate name. It was the corporation that contracted to do the work at the job where plaintiff delivered its goods and merchandise. The purchase agreement was oral. When asked to tell about the agreement, defendant testified that he said to plaintiff\u2019s president, \u201c[M]r. Foreman, I\u2019m guy do the work. When I get paid, I get my money, you get your money.\u201d According to defendant, Foreman replied, \u201cOkay, fine, because we do it before and it work out good (sic).\u201d\nObviously, the trial judge was presented with an irreconcilable conflict in the testimony. According to plaintiff\u2019s witness, defendant was the buyer of plaintiff\u2019s goods and merchandise. According to defendant, the buyer was Neri Brothers, Incorporated. From this conflicting testimony, the trial judge had to decide who, under the circumstances, was the buyer. This was a question of fact. (O\u2019Connor v. Bradford (1957), 94 Ga.App. 852, 96 S.E.2d 511; 77 C.J.S. Sales \u00a7 12.) More particularly, the judge had to decide whether defendant was the real party behind the transaction. This also was a question of fact. Level v. Chadbourne, 99 Ill.App. 171, 173; compare Hood v. Laubenheimer, 174 Ill.App. 62; see Pirek v. Scott, 206 Ill.App. 44 (abstr.); Cable Lumber Co. v. Mack, 210 Ill.App. 151 (abstr.).\nUnderstandably, deciding these questions of fact was not easy. This is seen from the trial judge\u2019s first ruling: it was in defendant\u2019s favor. Then, after examining the report of proceedings, the judge vacated that ruling. Evidently, the trial judge, as we are, was persuaded that defendant\u2019s testimony: \u201cI dealt with Joseph D. Foreman & Company\u201d and \u201cI say, \u2018Mr. Foreman, I\u2019m the guy do the work. When I get paid, I get my money, you get your money\u2019,\u201d coupled with other evidence in the record, compelled the finding that plaintiff sold its goods and merchandise to defendant and not to Neri Brothers, Incorporated.\nIt is well established that we will not disturb a finding of the trial court unless it is manifestly against the weight of the evidence. (Porterfield v. Truck Insurance Exchange, 28 Ill.App.2d 195, 171 N.E.2d 108; Taylor v. Monroe, 61 Ill.App.2d 118, 208 N.E.2d 845 (abstr.).) Although it was his burden, Croft v. Lamkin, 112 Ill.App.2d 321, 251 N.E.2d 88, defendant has not shown that the finding in question is manifestly against the weight of the evidence.\nOn the second issue, defendant contends that it was an abuse of judicial discretion for the trial judge to deny the motion by which he sought to supplement the record with a cancelled check of Neri Brothers, Incorporated. This check, defendant argues, supported his claim that plaintiff dealt with a corporation, not with him as an individual. The motion, defendant contends, properly invoked Supreme Court Rule 329.\nWe do not agree with this conclusion. At the trial, defendant testified that a payment on account was made to the plaintiff with a check of Neri Brothers, Incorporated. No check was introduced into evidence. The record contains no reference, omission or inaccuracy concerning a check. As a result, this is not an instance in which the record discloses a material omission or inaccuracy. (See Southland Corp. v. Village of Hoffman Estates, 130 Ill.App.2d 311, 264 N.E.2d 451.) A record cannot be supplemented, amended or corrected without it containing a basis for the supplement, amendment or correction. (See People v. Miller, 365 Ill. 56, 5 N.E.2d 458.) In this case, there was no basis for the motion to supplement the record. Therefore, its denial was not an abuse of judicial discretion. We affirm the judgment.\nJudgment affirmed.\nSTAMOS, P. J., and SCHWARTZ, J., concur.\nIll. Rev. Stat. 1969, ch. 110A, par. 329 (Supreme Court Rule 329). \u201cAmendment of Record on Appeal\nThe record on appeal shall be taken as true and correct unless shown to be otherwise and corrected in a manner permitted by this rule. Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court. Any controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth. If the record is insufficient to present fully and fairly the questions involved, the requisite portions may be supplied at the cost of the appellant. If necessary, a supplemental record may be certified and transmitted.\u201d",
        "type": "majority",
        "author": "Mr. JUSTICE LEIGHTON"
      }
    ],
    "attorneys": [
      "Albert L. Finston, of Chicago, (Sidney Z. Karasik, of counsel,) for appellant.",
      "James J. Cronin, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "Joseph D. Foreman & Company, Plaintiff-Appellee, v. Mike Neri, Defendant-Appellant.\n(No. 55267;\nFirst District\nJune 20, 1972.\nAlbert L. Finston, of Chicago, (Sidney Z. Karasik, of counsel,) for appellant.\nJames J. Cronin, of Chicago, for appellee."
  },
  "file_name": "0313-01",
  "first_page_order": 335,
  "last_page_order": 339
}