#### C. L. Aygarn v. W. A. Fraser Company.

Gen. No. 4,548.

1. Set-off—when estoppel to assert, arises. Where the party claiming a set-off has sent a statement of account to the party against whom it is claimed, he is estopped from asserting by way of set-off an amount greater than such sum, in the absence of mistake, unless transactions have arisen subsequent to the sending of the statement.

Action of assumpsit, Appeal from the County Court of Livingston County; the Hon, Arthur W, Deselm, Judge, presiding.

Heard in this court at the April term, 1905.

Affirmed.

Opinion filed August 1, 1905.

Rehearing denied October 20, 1905.

E. A. Simmons, for appellant.

H. E. Page and C. C. and L. F. Strawn, for appellee.

"Mr. Justice Farmer

delivered the opinion of the court.

Appellant was engaged in buying grain in Livingston *96County and shipping it in car-load lots to Chicago and elsewhere for sale. In 1902 he shipped several car-loads to W. A. Fraser at Chicago, a commission merchant, for sale in the market there. During this time Fraser organized a corporation for the conduct of his commission business known as W. A. Fraser Company, and the business of W. A. Fraser was turned over to it and thereafter conducted by the corporation. Appellant continued shipping grain to W. A. Fraser Company the same as he had done to W. A. Fraser, and. the account was carried on between him and the corporation the same as it had been before without any break. W. A. Fraser was succeeded by W. A. Fraser Company about May 1” 1902. When appellant would ship a car of grain he would draw on appellee with bill of lading attached for what he claimed was in the neighborhood of the true value of the load of grain, and these drafts would be paid by appellee, and when the grain was inspected and sold, statements would be rendered appellant of the sales. After the transaction of considerable business between the parties, appellee claimed appellant had overdrawn with it and that he was indebted to appellee $346.94, and this suit was brought in the County Court of Livingston County to recover that amount with interest. Appellant pleaded the general issue with notice of set-off, and also filed pleas of set-off. A trial was had by jury resulting in a verdict and judgment for appellee for $387.41, from which this appeal is prosecuted.

On the trial, appellee offered in evidence a paper marked “Exhibit 2,” and it was stipulated between the parties that said paper contained a true and correct account and complete copy of all original papers, original entries and records of all cars of corn and other grain received by appellee from appellant, with the date of shipment, car numbers and grades of grain, official out-turn weight at Chicago, prices and terms of sale, all payments made on account of such shipments and the net proceeds of the sales for account of appellant. The whole paper was not admitted, but by the stipulation all that portion of *97the account below a pencil line drawn through it by appellant’s counsel just above the date May 30, 1902, was, by consent, received in evidence, and the original has been certified up to us for inspection. When the corn, which was the principal grain shipped by appellant, arrived in • Chicago, it had to be inspected and graded by a state grain inspector before being sold. Corn grading No. 2 was what is called contract grain and sold for the highest price. Corn grading No. 3 sold for a considerably lower price. Cn the 14th of July-, appellee wired appellant that two cars, giving their numbers, had been graded 3 yellow, and there was no show for a change and the best bid was 70c. No reply was received from appellant to this message, and on the following day appellee wired appellant, “Three Yellow corn (72) fob bottom out,” which meant No. 3 yellow corn was worth 72c. with market failing. Appellant replied to that by wire, “Sell at prices named all you have in.” On the same day appellee again wired appellant, as we understand after his message was received, “Price wired you was ten cents too high, should be sixty-two.” On the same day appellee also wrote appellant a letter explaining they had made a mistake and wired No. 3 yellow corn was worth 72c. when it was in fact intended to say 62c. which was the best price that could be had for it. To this last message and letter appellant made no reply. Appellee receiving no response, appealed from the decision of the inspector grading the corn No. 3 and in accordance with the rules governing such transactions, the cars were placed on what is known as the appeal track until that question was determined. This was done as appellee claims, and as Ave think the proof shows, in accordance with general instructions before that time given by appellant. On July 10th appellant Avrote appellee Avith reference to grading the corn, “Where you see no chance of raising grade, "wire prices obtainable on 3 or 3 yellow. What grades 2 yellow, you do the best you can.” The proof showed appellant also gave oral instructions when in the city of Chicago to representatives of appellee to the' *98same effect. When the appeal was determined, these two cars of corn were graded No. 2 and sold five days after they were received as such, at the prevailing market price for that grade of corn, and were accounted for by appellee to appellant on that basis. July 16th appellee appears to have written appellant complaining of his overdrawing his account. After some other correspondence, which we do not deem necessary here to refer to, on the 6th of September appellant wrote appellee acknowledging receipt of their statement charging him with a balance due of $346.94. In his reply he said he had looked over appellee’s telegrams and the inspection certificates and upon due deliberation found appellee owed him $25.26, and enclosed the statement of the account. In this statement he charged appellee with 19J cents per bushel for the two car-loads of corn before referred to, amounting to $372.20, and credited it with their statement against him, $346.94, leaving a balance due him as he claimed of $25.26. The basis of his claim was that appellee should have sold his corn for 85c. The proof showed, as appellee wired appellant, the “bottom dropped out” of the market and corn declined rapidly. Appellee receiving no advice to the contrary, pursued the general instructions given by appellant in appealing from the decision grading the corn at No. 3, and was not responsible for the delay in making the sale. The result showed the appeal was justified, for it was sustained and the corn graded No. 2, and we are of opinion under the evidence in this record, appellant is entitled to no set-off on account of the price at which the grain in these cars was sold, against the claim of appellee which, by his letter referred to, he admits to be correct. Appellant’s counsel contend appellee’s instructions were to appeal from the inspection if it thought the grade could be raised, otherwise to sell immediately on the market. We find no evidence of any such instructions in this record. The only instructions on this subject we have quoted and referred to, and they will bear no such interpretation as is contended for by counsel. The instructions of appellant authorized appellee when the corn *99graded No. 2 to sell it for the best price he could get, but if it graded lower than 2 and appellee thought there was a chance by appealing to get the grade raised, it should do so; if in its judgment there was no chance to get the grade raised, it should wire price obtainable for No. 3, and the only reasonable interpretation that can be put upon the instructions to wire prices obtainable for No. 3 was that it should be held until appellant was heard from. These instructions were obeyed, as we understand this evidence, in letter and spirit by appellee, and appellant has no just claim for damages resulting from following his instructions.

Appellee filed with its declaration a copy of the account sued on, which is called by counsel a bill of particulars. It contained the debits and credits between the parties and showed the balance claimed to be due. The first debit item was, “May 1,1902, To Balance W. A. Fraser $653.56,” and the first credit was, “May 6, By sale 113 $693.20.” All proof of anything due W. A. Fraser was, on motion of appellant’s counsel, stricken out, as this suit was brought in the name of W. A. Fraser Company, a corporation. Thereupon, appellee asked leave to amend its copy of account sued on or bill of particulars, by striking out the first credit item. This was objected to by appellant’s counsel, but the objection was overruled and the amendment allowed, and it is very seriously contended that this was erroneous. Clearly the balance due W. A. Fraser could not properly form an item in plaintiff’s account, but appellant’s counsel contend the credit item stricken out was not an amount that should be credited to appellant on his account with W. A. Fraser, but was a credit to be applied on the account with the corporation. The credit item of $693.20 is on the paper introduced in evidence as “ Exhibit 2,” but is above the pencil line drawn through it by counsel for defendant. If it is to be considered in evidence, then it appears it was proceeds of the sale of a car of oats received by W. A. Fraser before the business was taken over by tha corporation, and, therefore, not any more properly a credit *100on the account between appellant and appellee than the §653.36 was a debit. The testimony of A. Brunswick, appellee’s accountant, tends to show also that this credit item had reference to the same car the debit item did. Appellant did not testify on the trial, nor did he call any witness on his behalf. As we have before stated he admitted his indebtedness to appellee and the amount claimed when he sent it a statement of what he claimed to be entitled to set-off against it. Patterson v. Houston, 92 Ill. App. 624, and cases there cited. He never claimed he had not received the full returns for all grains shipped, and on the merits of this case the judgment seems to be so fully justified that we would not feel warranted in disturbing it because of some technical error which did not affect the merits of the case. We are also of opinion appellant was not prejudiced by any imperfections in instructions given for appellee, nor by the modification or refusal of instructions asked by appellant. Our view of the case is that appellant admitted owing appellee the amount claimed, and that under the proof he had no right to any set-off against it. Hnder such circumstances we feel it our duty to affirm the judgment, which is accordingly done.

Affirmed.