#### J. C. Pennoyer Company, Defendant in Error, v. Eugene Wendnagel and William Wendnagel, trading as Wendnagel & Company, Plaintiffs in Error.

Gen. No. 20,298.

(Hot to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.

Reversed and remanded.

Opinion filed April 12, 1916.

Statement pf the Case.

Action by J. C. Pennoyer Company, a corporation, plaintiff, against Eugene Wendnagel and William Wendnagel, copartners, trading as Wendnagel & Company, defendants, to recover seventy-five dollars for services rendered.

*567The case was tried by the court without a jury, and judgment was entered in favor of plaintiff for the amount claimed, from which defendants bring error.

The evidence showed that in October, 1912, plaintiff was under contract with the South Halsted Street Iron Works to haul a steel girder from the latter’s place of business, located on South Halsted street, to the Alaska Theater, located on 31st street. To do this work it required twelve horses and five men. On the morning of October 1, 1912, plaintiff’s men and horses went to the South Halsted Street Iron Works to load the girder. When they arrived there they found a Mr. Carter, who was in the employ of the defendants. The girder was loaded on a wagon and taken to the Alaska Theater, but on account of some obstruction in the alley near the theater, plaintiff was unable to deliver the girder at the place desired. Plaintiff’s men, after waiting a reasonable time, informed Mr. Carter, who had accompanied them to the theater, that they could not allow their teams and men to wait any longer; that unless the girder was unloaded at once, plaintiff would charge twenty-five dollars per hour for any further delay. Thereupon Carter went to a nearby telephone, and shortly afterwards returned and told the plaintiff’s men if they would wait until the girder could be delivered at the proper place, they would be paid for such delay. Plaintiff’s men waited for three hours before they could deliver the girder, and this suit was brought to recover for the three hours’ delay at twenty-five dollars per hour.

One of the defendants testified that Mr. Carter was in their employ; that he was primarily an estimator on steel contracts; that he lived near the Alaska Theater, and that he was instructed to go to the theater three mornings each week and inspect the work and see how it was getting along. The witness further testified that Carter was not authorized by the defendants *568to make any agreement with the plaintiff’s men in their behalf.

Abstract of the Decision.

Contracts, § 387*—when evidence insufficient to sustain recovery. Evidence in action to recover for services alleged to have been performed under contract, examined and held insufficient to support verdict.

Adams, Crews, Bobb & Wescott, for plaintiffs in error.

Boyle & Mott, for defendant in error.

Mr. Justice O’Connor

delivered the opinion of the court.