{ "id": 5169727, "name": "American Publishing House v. B. H. Wilson", "name_abbreviation": "American Publishing House v. Wilson", "decision_date": "1896-03-31", "docket_number": "", "first_page": "413", "last_page": "418", "citations": [ { "type": "official", "cite": "63 Ill. App. 413" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "82 N. Y. 550", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": -1 }, { "cite": "24 Barb. 174", "category": "reporters:state", "reporter": "Barb.", "case_ids": [ 4990565 ], "opinion_index": -1, "case_paths": [ "/barb/24/0174-01" ] }, { "cite": "26 N. Y. 279", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2033186 ], "opinion_index": -1, "case_paths": [ "/ny/26/0271-01" ] }, { "cite": "4 N. Y. 411", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": -1 }, { "cite": "8 Cow. 297", "category": "reporters:state", "reporter": "Cow.", "case_ids": [ 2037388 ], "opinion_index": -1, "case_paths": [ "/cow/8/0296-01" ] }, { "cite": "71 N. Y. 40", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2168038 ], "opinion_index": -1, "case_paths": [ "/ny/71/0040-01" ] }, { "cite": "25 Conn. 530", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 523399 ], "opinion_index": -1, "case_paths": [ "/conn/25/0530-01" ] }, { "cite": "14 Ill. App. 335", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4877954 ], "opinion_index": -1, "case_paths": [ "/ill-app/14/0335-01" ] }, { "cite": "19 Ill. App. 612", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4904403 ], "opinion_index": -1, "case_paths": [ "/ill-app/19/0612-01" ] }, { "cite": "2 Gilm. 91", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2560545 ], "opinion_index": -1, "case_paths": [ "/ill/7/0091-01" ] }, { "cite": "7 Ill. App. 470", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4833999 ], "opinion_index": -1, "case_paths": [ "/ill-app/7/0470-01" ] }, { "cite": "42 Ill. 78", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5293750 ], "opinion_index": -1, "case_paths": [ "/ill/42/0078-01" ] }, { "cite": "12 Ill. 336", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2578645 ], "opinion_index": -1, "case_paths": [ "/ill/12/0338-01" ] }, { "cite": "77 Ill. 587", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 821777 ], "opinion_index": -1, "case_paths": [ "/ill/77/0587-01" ] }, { "cite": "129 Ill. 356", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2962863 ], "opinion_index": -1, "case_paths": [ "/ill/129/0356-01" ] }, { "cite": "76 Ill. 355", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5315149 ], "opinion_index": -1, "case_paths": [ "/ill/76/0355-01" ] }, { "cite": "70 Ill. 527", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5309904 ], "opinion_index": -1, "case_paths": [ "/ill/70/0527-01" ] }, { "cite": "4 Gilm. 536", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2561973 ], "opinion_index": -1, "case_paths": [ "/ill/9/0536-01" ] }, { "cite": "127 Ill. 167", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5411463 ], "opinion_index": -1, "case_paths": [ "/ill/127/0167-01" ] }, { "cite": "84 Ill. 251", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2652558 ], "opinion_index": -1, "case_paths": [ "/ill/84/0251-01" ] }, { "cite": "62 Ill. 242", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2607458 ], "opinion_index": -1, "case_paths": [ "/ill/62/0242-01" ] }, { "cite": "20 Ill. 646", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2596722 ], "opinion_index": -1, "case_paths": [ "/ill/20/0646-01" ] }, { "cite": "16 Ill. App. 161", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 854292 ], "opinion_index": -1, "case_paths": [ "/ill-app/16/0161-01" ] }, { "cite": "113 Ill. 475", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2865907 ], "opinion_index": -1, "case_paths": [ "/ill/113/0475-01" ] }, { "cite": "73 Ill. 389", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5318323 ], "opinion_index": -1, "case_paths": [ "/ill/73/0389-01" ] }, { "cite": "93 Ill. 39", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2735322 ], "opinion_index": -1, "case_paths": [ "/ill/93/0039-01" ] }, { "cite": "80 Ill. 532", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2680592 ], "opinion_index": -1, "case_paths": [ "/ill/80/0532-01" ] }, { "cite": "46 Ill. 441", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5298377 ], "opinion_index": -1, "case_paths": [ "/ill/46/0441-01" ] }, { "cite": "37 Ill. 216", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5291130 ], "opinion_index": -1, "case_paths": [ "/ill/37/0216-01" ] }, { "cite": "28 Ill. 423", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5203761 ], "opinion_index": -1, "case_paths": [ "/ill/28/0423-01" ] }, { "cite": "18 Ill. 55", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 438629 ], "opinion_index": -1, "case_paths": [ "/ill/18/0055-01" ] }, { "cite": "3 Scam. 566", "category": "reporters:state", "reporter": "Scam.", "case_ids": [ 2469383 ], "opinion_index": -1, "case_paths": [ "/ill/4/0566-01" ] }, { "cite": "2 Gil. 91", "category": "reporters:state", "reporter": "Gilmer", "opinion_index": 0 }, { "cite": "19 Ill. App. 612", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4904403 ], "opinion_index": 0, "case_paths": [ "/ill-app/19/0612-01" ] } ], "analysis": { "cardinality": 717, "char_count": 11463, "ocr_confidence": 0.548, "pagerank": { "raw": 9.961721986493819e-08, "percentile": 0.5374741925108375 }, "sha256": "02910f7c5b8b2e3374251a252e9ca3c68c7d1efcb4476875556221fd6db8f934", "simhash": "1:75d7fee95cc7c0b5", "word_count": 2021 }, "last_updated": "2023-07-14T18:54:49.987215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "American Publishing House v. B. H. Wilson." ], "opinions": [ { "text": "Mr. Justice Shepard\ndelivered the opinion of the Court.\nThe appellee entered into a written contract with the appellant, dated September 21, 1894, whereby she agreed to \u201c enter the services of the said American Publishing House for a period of twelve (12) months as traveling agent, to select and appoint suitable agents for the sale of the books and publications of the said American Publishing House,\u201d and to faithfully devote her time and attention exclusively thereto, and to travel whenever required, etc.\nShe entered upon the service, and continued therein until December 20th of that year, and thereupon sued and recovered for three months salary, and a balance on account of commissions, etc., aggregating in all $199. This appeal is from the judgment entered in her favor.\nThe written contract was offered in evidence, and shows on its face that the term of employment therein stated was first written \u201ctwelve\u201d months by typewriter, and then \u201ctwelve\u201d erased and \u201cthree\u201d written by pen above the \u201c twelve,\u201d and afterwards the \u201c three\u201d erased and \u201c twelve\u201d substituted by pen, so that at last it remained as expressing a term of twelve months.\nWhether such changes were made before or after signing, and upon any, and if so, what, verbal agreement contemporaneous therewith, or subsequent thereto, was a subject of controversy and of conflict in the evidence.\nThe appellee testified, in substance, that as first prepared and signed, the writing expressed twelve months, but that on the following morning the \u201ctwelve\u201d was erased and \u201c three\u201d put in its place in order to meet her wish to take employment for three months only, on account of the uncertainty of her health, but that upon her promise to continue for twelve months if she could, the \u201c three\u201d was erased, and \u201ctwelve\u201d substituted, upon the verbal agreement that if her health failed she should be released at the end of three months.\nOn the part of appellant the evidence tended to establish that all the changes were made before signing, and that there was no verbal agreement concerning a release of appellee at the end of three months.\nFor precisely what reason the appellee ceased her employment on December 20,th, does not quite satisfactorily appear.\n- She testified that it was because of her health not permitting her to continue, without a rest, in work that required her to do so much walking, and that her incapacity in one of her knees was such that it was nearly two months, after she quit before she could again get around satisfactorily.\nOn the other hand, she wrote appellant, under date of December 19, 1894, a letter, from which the following is an extract:\n\u201cI must be in Chicago, December 21st. It will not be at all necessary for you to make out a route for me after Hew Years, for nothing on earth would induce me to go out again -while the country is in its present condition and money so scarce. Agents can not sell books, and even with your offer, which is considered liberal, they can not afford to work all winter and perhaps get nothing until their contract expires; you wouldn\u2019t do it yourself.\u201d\nIf appellee\u2019s testimony be accepted as the true version, both as regards the alterations in the written agreement and the verbal agreement in connection therewith, and that her imperfect health disabled her from a continuance in the employment beyond the period of three months, a question not discussed in the briefs is raised as to the legal effect of adopting, or consenting to, changes in a written contract after it has been executed, and whether the writing so changed is not the exclusive evidence, not to be contradicted by parol, of what the contract between the parties is.\nThat question need not be decided or discussed, for it is objected that the second instruction given for the appellee was erroneous. It wras as follows:\n\u201c 2. The court instructs the jury that if the contract between the plaintiff and the American Publishing House does not provide for a forfeiture of the plaintiff\u2019s salary as damages in case plaintiff should not work for the entire time stated in the contract, the plaintiff ivould be entitled to recover for the time she actually did work, if she did not work the entire time.\u201d\nIt is almost too plain for argument that such instruction does not correctly state the rule of law.\nMore than fifty years ago the rule was laid down in this State, in conformity with much older precedent, in the following words:\n\u201c When the agreement is entire, a full and substantial performance of a condition precedent by the plaintiff must be shown before he can recover on the contract; for an entire contract can not be affirmed as far as it has been performed and rescinded as to the residue.\u201d Eldridge v. Rowe, 2 Gil. 91; see also Cutler v. Powell, 6 Durn. & East. (Term Rep.) 320.\nAnd the rule so announced has never been departed from.\nThis court said in Illingsworth v. Slosson, 19 Ill. App. 612:\n\u201c The contract is entire. What was to be done by one party and what was to be paid by the other, is certain and fixed. In such case there can be no apportionment, and no recovery for any part of the consideration, until that for which it is agreed to be paid has been performed.\u201d\nIt is plain from an inspection of the whole contract, that it contains no express provision for a forfeiture of the plaintiff\u2019s salary in any event, and to instruct the jury in the language that was used, was in effect to tell them the appellee was entitled to recover, as a matter of law, for the time she worked, irrespective of the terms of the contract.\nThis was clear error, as is shown by the authorities cited, and for that the judgment must be reversed and the cause remanded.", "type": "majority", "author": "Mr. Justice Shepard" } ], "attorneys": [ "John H. Kane, attorney for appellant.", "Samuel S. Parks, attorney for appellee," ], "corrections": "", "head_matter": "American Publishing House v. B. H. Wilson.\n1. Performance of Entire Contracts.\u2014An agreement to serve another for twelve months is an entire contract, and a substantial performance of it must be shown before a recovery can be had upon it.\nAssumpsit for Services.\u2014Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the March term, 1896.\nReversed and remanded.\nOpinion filed March 31, 1896.\nJohn H. Kane, attorney for appellant.\nWhere a contract is reduced to writing, the writing merges all prior and contemporaneous agreements in respect to the subject-matter. Lane v. Sharpe, 3 Scam. 566; Stookey v. Hughes, 18 Ill. 55; Robinson v. Magarity, 28 Ill. 423; Snyder v. Griswold, 37 Ill. 216; Fitch v. Priest, 46 Ill. 441; Ely v. Ely, 80 Ill. 532; Bragg v. Geddes, 93 Ill. 39.\nWhere the parties reduce their contract to writing their intention must be gathered from its terms; the writing must speak for itself. Kimball v. Custer, 73 Ill. 389; Gardt v. Brown, 113 Ill. 475.\nThe intent to be enforced is that which is to be ascertained by a proper construction of the words employed. Adams & Westlake Mfg. Co. v. Cook, 16 Ill. App. 161.\nWhere the parties undertake to put their engagements in writing, it will be presumed that the writing expresses the whole contract. Farras v. Hinch, 20 Ill. 646; Merchant\u2019s Insurance Co. v. Morrison, 62 Ill. 242; Harding v. Commercial Loan Co., 84 Ill. 251; Wright v. Sampter, 127 Ill. 167.\nWhere the, language is unequivocal there is no room for construction, and the contract must be enforced according to its legal effect, although the parties have failed to express their real intention. Benjamin v. McConnell, 4 Gilm. 536; Walker v. Tucker, 70 Ill. 527; Canterberry v. Miller, 76 Ill. 355.\nWhile a contract is to be construed as to give effect to the intention of the parties, they are presumed to intend what their language imports. Williams v. Fletcher, 129 Ill. 356.\nWhere a contract is avoided it must be avoided in toto. A party can not retain of an entire contract that part which is valuable to him and avoid it as to the residue. Covington v. Short, 77 Ill. 587; Buchanan v. Horney, 12 Ill. 336; Ryan v. Brant, 42 Ill. 78; Kimball v. Lincoln, 7 Ill. App. 470.\nAn entire contract can not be affirmed so far as it has been performed and avoided as to the residue. Eldridge v. Rowe, 2 Gilm. 91.\nWhere one undertakes to do a certain thing for a certain sum he is not entitled to compensation if he fails to perform, for what he does in trying to perform; the contract is entire. Illingsworth v. Slosson, 19 Ill. App. 612; Laughlin v. Ettinger, 14 Ill. App. 335.\nThe instructions of the court for the plaintiff below proceeded upon the theory that the sickness complained of by the plaintiff was occasioned by an \u201c act of God,\u201d and released the plaintiff from completing her contract. This idea is erroneous; the law recognizes a distinction between that class of cases where the obligation is imposed by operation of law, and the class where the obligation is created by the express agreement, or covenant of the party himself. In the former the phrase \u201c act of God \u201d has been applied to a variety of unavoidable accidents, which has been held to discharge the legal liability; in the latter class, the only contingency to which that phrase has been applied, as excusing performance, has been the death of the party who alone in his own proper person could perform the thing to be dohe, or the destruction of the very thing which, identically, was to be delivered, sold or transferred, and which it was physically impossible always for human power to cause to exist. 2 Co. Lit. 206; 3 Co. Lit., Note 1 to 206 a; Williams v. Lloyd, Wm. Jones 179; 2 Pars. Cont. 184; Chit. Cont., 5th Am. Ed., 57, 59, 735; Walton v. Waterhouse, 2 Saund. 420.\nThe \u201cact of God\u201d will excuse the non-performance of a duty created by law, but not of one created by contract. School District No. 1 v. Dauchy, 25 Conn. 530.\nWhere a law casts a duty on a party, the performance shall be excused if it be rendered impossible by the \u201c act of God;\u201d but where the party, by his own contract, engages to do an act, it is deemed to be his own fault and folly that he did not thereby provide against contingencies. Chitty on Contracts, 272.\nSamuel S. Parks, attorney for appellee,\ncontended that where a person is employed to perform a personal service, which can not be performed by proxy, illness will excuse him. Spalding et al. v. Rosa et al., 71 N. Y. 40.\nContracts for personal services, whether of the contracting party or of a third party, requiring skill, and which can only be performed by the particular individual named, are not of absolute obligation under all circumstances. Both parties must be supposed to-contemplate the continuance of the ability of the person whose skilled services are the subject of the contract, as one of the conditions of the contract. Such contracts are subject to this implied condition, that the person shall be able at the time appointed to perform them; and if he dies, or without fault on the part of the covenantor becomes disabled, the obligation to perform is extinguished. People v. Manning, 8 Cow. 297; Jones v. Judd, 4 N. Y. 411; Clark v. Gilbert, 26 N. Y. 279; Wolfe v. Howes, 24 Barb. 174; Gray v. Murray, 3 J. C. R. 167; Robinson v. Davison, L. R., 6 Excheq. 268; Boast v. Frith, L. R., 4 Com. Pleas, I.\nu So also where the contract is for personal services, which none but the person contracting can perform, inevitable accident, or the act of God, will excuse non-performance. But when the thing or work to be performed may be done by another person, then all accidents are at the risk of the promisor.\u201d Wheeler v. Conn. Mut. Life Ins. Co., 82 N. Y. 550." }, "file_name": "0413-01", "first_page_order": 409, "last_page_order": 414 }