#### Henry Metz v. Samuel E. Wood et al., for use, etc.

Agency—Commission Merchants—Balance Due—Recovery of—Amendment.

In an action brought by commission merchants to recover a balance alleged to be due from defendant and another, this court holds'tbat said persons were individually liable therefor; that a certain amendment of the declaration was proper, 1 hough made after verdict; and declines to interfere with the judgment for the plaintiffs.

[Opinion filed May 21, 1891.]

Appeal from the Circuit Court of Ogle County; the Hon. John D. Crabtree, Judge, presiding.

Messrs. M. D. Swift and W. & W. D. Barge, for appellant.

Messrs. J. W. Allaben and J. C. Seyster, for appellees.

Upton, J.

This action was assumpsit, commenced in the Circuit Court of Ogle County by appellees against appellant and Solomon Metz as defendants. The declaration contained the common counts only, wherein appellees claimed Solomon Metz and Henry Metz were indebted to them for stock, goods, wares and merchandise sold, money lent and advanced, etc., and being so indebted promised, etc., amounting, etc., to §238.68. The declaration was accompanied by an affidavit of merits, etc., to which the defendants filed their plea of the general issue and affidavit of meritorious defense as to Solomon Metz, one of the defendants; a plea of statute of limitations was also interposed and issue taken thereon. The cause was heard in the Circuit Court with a jury. The appellees after verdict dismissed the suit as to Solomon Metz, and he excepted • thereto. The jury returned a verdict for appellees against Henry Metz in the sum of $238.68. After verdict rendered. *132and upon motion for a new trial, appellees moved, and the court allowed the declaration to be amended (to conform-to the fact, after dismissing the action as to the co-defendant, Solomon Metz) therein, stating a cause of action against Henry Metz alone, to which he excepted. A motion for a new trial- and a motion in arrest having been overruled, the Circuit Court entered judgment on the verdict and the case was appealed to this court. The errors assigned challenge the action of the trial court, in allowing the appellees to dismiss the suit as to Solomon Metz and proceed to judgment against defendant, Henry Metz, in allowing appellees to amend the declaration in the court below after the verdict rendered, and in refusing to grant a new trial, because the evidence claimed was insufficient to warrant the verdict. Appellees were residents of Chicago, engaged in 1884 and until the present as commission merchants therein. During the years 1884 and 1885 they had dealings with some person called S. Metz, of Polo, 111.; received consignments of live stock in his name, but had no personal acquaintance one with the other. Henry Metz, appellant, in person accompanied the stock so consigned and transacted the business; stated to appellees that he (the appellant) was S. Metz and the owner of the stock so shipped, and the money or proceeds upon the sale of the stock by appellees was paid to appellant, believing him to be in fact S. Metz, the consignor and shipper thereof.

Appellant, in the name of S. Metz, drew drafts upon appellees, using the moneys obtained thereon supposedly in the purchase of the stock shipped appellees, and it sometimes occurred that the shipments to appellees of stock were not sufficient to cover the full amounts of the drafts or advances made therefor, and appellant would promise to pay the difference as soon as he could, saying that he was doing business right along with appellees, and they need not be so particular with him as to such overdrafts.

In the winter of 1886, appellant being indebted to appellees in the amount of $288.68 for moneys due in the business transactions aforesaid, conducted, with appellant as 8. Metz, and being pressed for payment thereof, first informed *133appellees that his name was Henry Metz, but that S. Metz was his brother, and engaged with him, appellant, in the business transactions with appellees, and promised personally to pay appellees the balance due them, which he admitted was $238.68, but enjoined silence upon that subject stating that his brother, S. Metz, had failed in business, and if the fact was known that appellant paid appellees it might involve. appellant in financial difficulty with the creditors of S. Metz, his brother. Some time after this, appellees received a written notice from S. Metz, or his assignee, to appellees, directed as creditors of S. Metz, and upon the receipt thereof appellees sent their traveling agent to Polo to ascertain its meaning. The agent so sent by appellees met appellant in Polo, informed him of the receipt of the notice by appellees, and inquired what it meant. Appellant replied, “ I don’t mean Wood Bros.; they were always friends of mine, and I will not beat them out of a cent.” Appellant then promised to ship stock .to appellees sufficient to pay the amount due on the account claimed, and said that he, Henry Metz, owned the stock shipped appellees prior to January, 1886; that he had sufficient stock to cover the indebtedness then in the stock yards, which he exhibited to the agent, and promised to ship the same to appellees to satisfy their demand, etc. Appellant further stated that his brother, ti. Metz, had been engaged in the boot and shoe business at Polo, but that he, appellant, had not been engaged therein; that appellees had no business with the shoe store, and did not come under the head of that failure, and admitted his liability upon, and promised to pay appellees’ claim. This in substance was appellees’ case as made by the evidence in the trial court, which in greater part was contradicted by the evidence offered by appellant; indeed, the evidence was utterly irreconcilable and flatly contradictory, peculiarly a question for the jury to determine as to the credibility of the witnesses, and they found for the appellees in this contention, and after a careful examination of this record we are unable to say they were not sustained by the weight of the evidence in so finding. Upon the question of fact under the well under*134stood rule of law we do not feel authorized to distort) the verdict of the jury. This will dispose of appellant’s contention upon that point. It is claimed that the trial court was in error in allowing the dismissal of the suit as to S. Metz, and amendment of the narr. by the striking out of the name of S. Metz therefrom after verdict, upon the ground that the action was a joint action against Solomon and Henry Metz, and a recovery must be had against both or neither. Appellees’ proof heard in the court below would seem to establish the fact claimed by appellees, that the appellant claimed to be the owner of the stock shipped and entitled to receive the money therefrom derived on sale thereof, and that he was, in fact, the S. Metz in whose - name the stock was shipped and consigned to appellees, and was, at least, doing business in the name of S. Metz; and after the business was wholly closed, and it was discovered by appellees that the appellant was not in fact S. Metz, appellant claimed he was carrying on and conducting business in the najne of S. Metz, and that they were not individually, but were jointly, liable therefor. But appellant’s evidence as a witness on the hearing below was explicit that he had no interest in the stock shipped, out of which the indebtedness to appellees accrued, and hence obtained the money,.etc., under false ¡cretenses. This being the state of the case, both Solomon and Henry Metz would be liable to appellees for the amount due them in this suit, not jointly, but individually and severally. Solomon, because, as he testifies, he in fact received the moneys from the cattle shipped to the appellees, and that it was his individual transaction and personal business, and Henry would be liable to appellees therefor, because the moneys were procured and the business was done and credit obtained by himself, claiming to be the principal, and, in fact, the S. Metz, shipper and actual owner of the cattle or stock shipped, and upon such representations induced advances to be made by the appellees on appellant’s promise to repay the same on further shipments of stock to them by him thereafter made.

■ If we are correct in this view the liability was not shown *135by the evidence to have been a joint liability, but several, and under the present statute of amendments the trial court committed no error in allowing the amendments complained of, even after verdict. Ho wrong is perceived to have been done appellant thereby of which he could be heard to complain. It is not claimed that he could procure other or further evidence upon the facts then in issue. He had the opportunity of having all he offered heard, and we think substantial justice has been done in this case, and perceiving no error in the giving or z’efusing of instructions as offered, refused or znodified, or in amendments allowed, or dismissal of parties to this proceeding, or in entering of judgment upon the verdict rendered, the judgment of the Circuit Court znust be affirmed.

Judgment affirmed.