{ "id": 5118982, "name": "Packer v. Pentecost", "name_abbreviation": "Packer v. Pentecost", "decision_date": "1893-04-11", "docket_number": "", "first_page": "228", "last_page": "231", "citations": [ { "type": "official", "cite": "50 Ill. App. 228" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "126 Ill. 100", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5405299 ], "opinion_index": -1, "case_paths": [ "/ill/126/0100-01" ] }, { "cite": "72 Ill. 218", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2713201 ], "opinion_index": -1, "case_paths": [ "/ill/72/0218-01" ] }, { "cite": "19 Ill. 59", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 441588 ], "opinion_index": -1, "case_paths": [ "/ill/19/0059-01" ] }, { "cite": "9 Ala. 380", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3045134 ], "opinion_index": -1, "case_paths": [ "/ala/9/0380-01" ] }, { "cite": "50 N. Y. 666", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2059695, 2059703 ], "opinion_index": -1, "case_paths": [ "/ny/50/0666-02", "/ny/50/0666-01" ] }, { "cite": "60 Ill. 409", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8501640 ], "opinion_index": -1, "case_paths": [ "/ill/60/0409-01" ] }, { "cite": "50 Ill. 86", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "50 Ill. 85", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2607214 ], "opinion_index": 0, "case_paths": [ "/ill/50/0085-01" ] }, { "cite": "15 Ill. 561", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 436733 ], "opinion_index": 0, "case_paths": [ "/ill/15/0561-01" ] }, { "cite": "14 Ill. 324", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2585158 ], "opinion_index": 0, "case_paths": [ "/ill/14/0324-01" ] } ], "analysis": { "cardinality": 389, "char_count": 7096, "ocr_confidence": 0.449, "pagerank": { "raw": 8.388369756404458e-08, "percentile": 0.48221537240202034 }, "sha256": "1c38680d1f570cb2b1c81842d42043b3187ea1dfdf267fbc34f993e20817b06e", "simhash": "1:072c29cee25e0495", "word_count": 1223 }, "last_updated": "2023-07-14T15:57:42.711650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Packer v. Pentecost." ], "opinions": [ { "text": "Opinion on the Court,\nShepard, J.\nThis was a suit for services rendered by an architect in drawing plans for a proposed residence, resulting in a judgment for one thousand dollars, in favor of appellee. The plans were not used by the appellant.\nWhatever else the contract between the parties may have been, and whether appellant accepted the plans or not, and there is much evidence on both subjects, it is not claimed that there was any express agreement as to the amount of compensation to be paid appellee for preparing the plans.\nThe plaintiff below, appellee in this court, testified that the estimated cost of the residence, according to the plans he prepared, was fifty thousand dollars. It does not appear that the cost thus estimated by him was communicated to the appellant, or that he was instructed to prepare plans for a structure of that cost, or that a building to cost about that sum was contemplated by appellant.\nThe verdict and judgment were rendered on the basis of two per cent on the cost of a building, being the customary charge among architects for preparing plans.\nThe evidence introduced for the purpose of showing that there was a customary charge among architects for services for the kind indicated, fell far short of what the rule requires to establish a custom which will bind a third person.\nThere was no attempt to show that the custom among architects to charge two per cent for such services as were rendered, was known to the appellant either by direct testimony, or that it was so notorious, uniform and universal as that he must be presumed to have known it.\nThe appellant was a banker and the appellee an architect. The rule, therefore, that where a custom relates to a particular 'trade, business or profession, it will be presumed that all persons engaged therein, know it, has no application. A custom, to be binding, must be uniform, long established, and generally acquiesced in, and so well known as to induce the belief that the parties contracted with reference to it, when nothing was said to the contrary. Bishop on Contracts, Secs. 451, 452, 458; Corrigan v. Herrin (No. 4368, March term, 1892); Dixon v. Dunham, 14 Ill. 324; Crawford v. Clark, 15 Ill. 561; Turner v. Dawson, 50 Ill. 85,\nBut the evidence, which need not be recited, failed to show that there was any such well established, uniform and universal rule among architects themselves, as to amount to- a custom with reference to charges for the mere drawing of plans which were not adopted and used in the construction of the building for which they were prepared.\nCounsel for appellee seek by their argument to sustain the judgment on the theory that if the evidence be sufficient to prove a customary charge, it Avas sufficient to prove what Avas a reasonable charge. We do not think so. The question put to each of the Avitnesses who testified on that subject was, what was the usual and customary charge, and the answers were direct to that question, except in the case of the witness Starbuck, Avho answered that two and one-half per cent was the usual charge if the plans had been fully completed; with the specifications wanting, tAvo per cent would be reasonable and fair.\u201d\nOn cross-examination, the same witness, Starbuck, was asked the direct question what he would deem a reasonable charge for making the plans introduced in evidence, and he replied that it Avas impossible for him to say; that he could not answer the question.\nThere was no other evidence as to what a reasonable charge would be. Had a custom been proved it might well be said that it would sustain a conclusion that a charge of two per cent on the estimated cost of the building was a reasonable charge, for one of the essentials of a custom which shall have the force of law and enter into contracts with binding effect, is that it shall be reasonable. But we have held that the evidence was insufficient to prove a custom.\nBesides, the instruction given on behalf of the appellee contained no reference to reasonable charges, but spoke only of what \u201c was the customary and usual charge for architects \u2019 services,\u201d under the circumstances, \u201c according to a custom in Chicago among architects.\u201d\nThe judgment will be reversed and the cause remanded.", "type": "majority", "author": "Shepard, J." } ], "attorneys": [ "Appellant\u2019s Brief, E. A. Sherburne, Attorney.", "Appellee\u2019s Brief, IVIoses, Pam & Kennedy, Attorneys." ], "corrections": "", "head_matter": "Packer v. Pentecost.\n1. Custom\u2014Legal Requisites.\u2014A custom to be binding must be uniform, long established, and generally acquiesced in, and so well known as to induce the belief that the parties contractwith reference to it, when nothing is said to the contrary.\n2. Custom\u2014Sufficiency of Evidence to Sustain.\u2014Where an architect prepared plans for the proposed residence of a banker, and brought an action to recover for Iris services as an architect, it was held that the rule that, where a custom relates to a particular trade or profession, it will be presumed that all persons engaged in such trade or profession knew it, has no application.\n3. Custom\u2014Presumption that it is Known.\u2014In an action brought by an architect for the recovery from a banker for preparing plans for the erection of a house for him, it was claimed that there existed a custom among architects to charge two per cent for such services. There was no attempt, however, to show that such custom was known to the banker, either by direct testimony or that it was so notorious, uniform and universal that he must be presumed to have known it. It was held he was not bound by the custom.\n4. Custom\u2014Reasonable Charges.\u2014Evidence which is in itself sufficient to prove a customary charge is not necessarily sufficient to prove what is a reasonable charge.\nMemorandum.\u2014Action of assumpsit. In'the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Declaration, special and common counts; plea, general issue; trial by jury; verdict and judgment for plaintiff; appeal by defendant. Heard in this court at the March term, 1893.\nReversed and remanded.\nOpinion filed April 11, 1893.\nThe opinion states the case.\nAppellant\u2019s Brief, E. A. Sherburne, Attorney.\nA custom, to be binding, must be uniform, long-established and generally acquiesced in, and so well known as to induce the belief that parties contracted with reference to it, when nothing is said to the contrary. Turner v. Dawson, 50 Ill. 86.\nAppellee\u2019s Brief, IVIoses, Pam & Kennedy, Attorneys.\nAppellee contended that it is the every-day and common manner of proving what compensation one is entitled to recover in. cases of this character, as with all physicians and lawyers and mechanics, by proving what is the customary and usual charge for the service claimed for. That is all that has been done in this case and that is sustained by authority. Lawson on Usage and Custom, Sec. 136; Hayes v. Moynihan, 60 Ill. 409; Johnson v. DePeyster, 50 N. Y. 666; Pursell v. McQueen, 9 Ala. 380.\nIn this case the judgment does substantial justice between the parties. He invokes the doctrine that where it is apparent upon the whole record that substantial justice has been done, the court will not reverse. Dishon v. Shorr, 19 Ill. 59; Hewitt v. Jones, 72 Ill. 218; Chicago City Ry. Co. v. Duffin, 126 Ill. 100." }, "file_name": "0228-01", "first_page_order": 224, "last_page_order": 227 }