Appeal by defendant from the Circuit Court of Peoria county;
the Hon. HENRY J. INGRAM, Judge, presiding. Heard in this court
at the October term, 1951. Judgment affirmed. Opinion filed
January 8, 1952. Released for publication January 28, 1952.
MR. JUSTICE WOLFE DELIVERED THE OPINION OF THE COURT.
The Keystone Steel and Wire Company, an Illinois corporation, started a suit in the circuit court of Peoria county, against the Price Iron and Steel Company, an Illinois corporation, with its main office in Chicago, Illinois. The suit was for damage for the defendant's failure to furnish scrap steel, as provided in the contract between the parties. It is alleged in the complaint that the parties entered into a contract whereby the defendant agreed to sell, and the plaintiff agreed to buy certain scrap iron, but that the defendant had defaulted in its contract and failed to supply the iron as contracted for, and the plaintiff was damaged and had to purchase scrap iron at a higher price than the defendant had agreed to furnish, and thereby was damaged to the amount of $35,000.
The defendant made a motion to dismiss the suit claiming that the circuit court of Peoria county did not have jurisdiction of the parties to the suit. It is conceded that the defendant Company's office is in Chicago, Illinois, therefore the defendant contended that the court did not have jurisdiction to hear the suit, or in the alternative, the suit should be transferred to either the circuit or superior court of Cook county. The plaintiff claimed that the Practice Act, sections 131 and 132 [Ill. Rev. Stat. 1949, ch. 110; Jones Ill. Stats. Ann. 104.007, 104.008] gave the court jurisdiction to hear the suit. The part material to the issues, of section 131 is, "Every civil action shall be commenced in the County, in which the transaction or some part thereof occurred out of which the cause of action arose." Section 132 the material part is, "Civil actions may be commenced against any private corporation, in the county in which the transaction or some part thereof occurred, out of which the cause of action arose." In the present case the contract in question was prepared and signed by the plaintiff, the Keystone Steel and Wire Company in Peoria, and then forwarded to the defendant Company in Chicago, Illinois. They signed it and returned it to the plaintiff, and it is the contention of the plaintiff that this contract comes squarely within the Practice Act; that a part of the transaction occurred in Peoria county, and the other part in Cook county. The court overruled the motion to dismiss the suit, or transfer the case to Cook county, and the defendant then answered and denied that they agreed to sell and deliver scrap iron to the plaintiff Company, but that they were simply brokers employed by the plaintiff to furnish this scrap iron.
The case was submitted to the court without a jury that found the issues in favor of the plaintiff and assessed its damages at $24,703.20. This judgment included $1,589.10 as interest extended from November 18, 1949, to the date of the judgment. It is from this judgment that the appellant, Price Iron and Steel Company, has prosecuted an appeal to this court.
It is first insisted that the trial court erred in not sustaining their motion to dismiss the suit or transfer it to Cook county for further hearing. Appellant has cited numerous cases which it contends supports its contention that the court did not have jurisdiction to try the case. Several of these cases cited are under the old Practice Act, and not applicable to the statute as it now stands. In several of the cases the question was not raised in the trial court, and the court of review held that it could not be raised in the upper court for the first time. We find no case cited by the appellant where the same question was raised as that presented for us in this appeal; namely, where it is shown that the transaction in question occurred in two counties.
The Appellate Court of the Fourth District in the case of Consolidated Gasoline Company v. Lexow, 316 Ill. App. 257, had the same question presented to it as we are now discussing. In the opinion we find this language: "It will be observed from a reading of the motion to strike that the defendants below did not see fit to challenge the recital in the complaint that part of the transaction in question occurred in St. Clair county. We are of the opinion that the allegation in the complaint that the lease was made and executed partly in St. Clair county was sufficient to confer jurisdiction upon the circuit court of that county. Conceivably, the lease in question could have been made and executed partly in one county and partly in another. If one party to the lease signed in Madison county and another party thereto signed in St. Clair county, certainly the transaction would occur partly in one and partly in the other. Contrary to the contention of the appellees, it would not depend upon who signed last, nor where the instrument was delivered. Preliminary to the execution of the lease, negotiations might have taken place partly in one county and partly in another." We agree with the law as stated in this case that it makes no difference which party signed first, or where it was delivered. It shows that part of the transaction took place in Peoria county, and the other part in Cook county, and it is our conclusion that the court did have jurisdiction to try the case and did not err in overruling appellant's motion to dismiss the suit, or transfer the case to some court in Cook county.
It is seriously insisted by the appellant that this contract is not a contract whereby the defendant agreed to sell, and the plaintiff agreed to buy a certain amount of scrap steel from them, but that this defendant was simply to act as the broker in buying steel for the plaintiff. The contract is as follows:
"KEYSTONE STEEL & WIRE COMPANY Ph. 4-7171 Peoria, 7 Illinois Purchase Contract No. S-9941
W.C. ERKERT Director of Purchases F.A. LITTLE Date JUNE 7, 1949. Purchasing Agent
At and upon the following prices, terms and conditions, PRICE IRON & STEEL CO., of PEOPLES GAS BLDG., Chicago, Illinois, agrees to sell and KEYSTONE STEEL & WIRE COMPANY, Peoria, Ill., Agrees to buy:
================================================== Quantity | Description of Material ----------|--------------------------------------- 500 GT | Of No. 1 Railroad Heavy Melting Steel, | Item #24-A, Originating I.C. RR. | Confirms Telephone Order Placed with | Mr. Walter Bregman Today. ==================================================
Price $20.10 Gt Including Commission.
Point of Delivery Peoria, Illinois
F.O.B. Cars I.C. Tracks Pekin, ...