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02/02/88 James L. Heavey, v. John B. Ehret Et Al.

February 2, 1988





519 N.E.2d 996, 166 Ill. App. 3d 347, 116 Ill. Dec. 781 1988.IL.112

Appeal from the Circuit Court of Cook County; the Hon. Charles J. Durham, Judge, presiding.


JUSTICE STAMOS delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.


This is an appeal by a manufacturer's representative *fn1 (Ehret) from the judgment and post-trial orders entered by the circuit court of Cook County after a jury trial during proceedings in which Ehret was sued for commissions by plaintiff, James L. Heavey (Heavey), who was a former sales employee of Ehret, and in which Heavey was countersued by Ehret.

The record as presented to this court contains no document purporting to be a judgment on the jury's verdict against Ehret or to set forth the contents of such a judgment. Extraordinarily, Ehret's briefs themselves acknowledge the apparent lack of such a judgment, while Heavey's briefs are largely silent on the question. The record on appeal contains only a signed verdict, orders denying Ehret's post-trial motion for judgment notwithstanding the verdict and for a new trial and denying Ehret's motion for remittitur, an order setting an appeal bond, and an appeal bond.

This court has no jurisdiction to consider an appeal from a nonexistent judgment. (People v. Cook (1981), 94 Ill. App. 3d 73, 74-75, 418 N.E.2d 457, 459.) A jury verdict or trial Judge's finding alone is not a judgment. (Harrison v. Singleton (1839), 3 Ill. (2 Scam.) 21; Wilburn v. City of Chicago (1984), 123 Ill. App. 3d 744, 747, 463 N.E.2d 789, 791; Mendelson v. Lillard (1980), 83 Ill. App. 3d 1088, 1092, 404 N.E.2d 964, 968; Oppenheimer v. U.S. Carbon & Ribbon Manufacturing Co. (1963), 43 Ill. App. 2d 451, 457, 193 N.E.2d 868, 871, appeal denied (1964), 29 Ill. 2d 625; Sager v. Steele (1957), 13 Ill. App. 2d 570, 142 N.E.2d 503 (abstract of opinion); Mid City Wholesale Grocers, Inc. v. Bischoff (1945), 327 Ill. App. 268, 270, 64 N.E.2d 234, 235; LeMenager v. Northwestern Barb Wire Co. (1938), 296 Ill. App. 568, 570, 16 N.E.2d 824, 825; People ex rel. Pantier v. Pantier (1921), 221 Ill. App. 574, 575-76; Shroeder v. Clarke (1897), 71 Ill. App. 74, 75.) Neither is a docket entry or a mere reference or recital in an abstract, transcript, certificate of evidence, or bill of exceptions that a judgment has been entered. (People ex rel. Pickerill v. New York Central R.R. Co. (1945), 391 Ill. 377, 382, 63 N.E.2d 405, 407; Metzger v. Wooldridge (1899), 183 Ill. 174, 178, 55 N.E. 694, 695; Terry v. Trustees of Hamilton Primary School (1874), 72 Ill. 476, 479; Rittenhouse v. Dixon National Bank (1968), 96 Ill. App. 2d 391, 393, 238 N.E.2d 640, 640-41; People v. Brewerton Coal Co. (1929), 253 Ill. App. 414, 415; Ashmore v. Skene Lead Co. (1909), 150 Ill. App. 381, 382.) A notice of appeal's reference to a judgment not otherwise shown of record was insufficient to avoid dismissal of the appeal in Harris v. Annunzio (1952), 411 Ill. 124, 103 N.E.2d 477. (Accord Hayes v. Industrial Comm'n (1943), 383 Ill. 272, 48 N.E.2d 940; Palefrone v. Shelton (1949), 337 Ill. App. 99, 85 N.E.2d 52 (abstract of opinion), appeal dismissed (1949), 403 Ill. 628.) In the case at bar, recital of a judgment in the notice of appeal, in the order setting an appeal bond, or in the appeal bond itself was no more a judgment than were recitals in the cases just cited.

Though it is the responsibility of the appellant to furnish the appellate court with a full record (Dobsons, Inc. v. Oak Park National Bank (1980), 86 Ill. App. 3d 200, 208, 407 N.E.2d 993, 999), we can adjudicate in the interest of complete Justice even when a record as filed is incomplete (La Bree v. Schrieber Co. (1983), 116 Ill. App. 3d 15, 18, 452 N.E.2d 1, 3). Accordingly, after investigation by this court itself, we have taken judicial notice that in the law record book maintained by the clerk of the circuit court for October 31, 1986, is to be found a record of judgment for $30,500 on the jury's verdict against Ehret in this case. Accordingly, we proceed to consider the merits of Ehret's appeal.

Ehret contends that (1) the jury verdict in Heavey's favor was supported by insufficient evidence of an express contract between Heavey and Ehret; (2) the verdict was supported by insufficient evidence of an implied contract; (3) Heavey was not the procuring cause of orders for which commissions were claimed; (4) Heavey's final argument to the jury was not properly based on the evidence; (5) the court improperly failed to give Ehret's originally tendered jury instruction as to plaintiff's express- and implied-contract theories of recovery and as to Ehret's counterclaim; and (6) the court erred in commenting during trial on the evidence or on Ehret's theory of recovery in a manner allegedly prejudicial to Ehret. I. EVIDENCE OF EXPRESS CONTRACT

Heavey testified as to the terms of an oral contract that he testified he made with Ehret whereby Heavey would work as a salesman for commissions. Heavey testified that he worked under that contract for 10 years until he resigned from his job in 1982. He further testified that when he resigned he had booked orders on which he had not yet been paid commissions. He testified as to the amount still claimed to be owed him by Ehret.

For his part, Mr. Ehret testified that Ehret's agreement with Heavey provided only that Heavey would be paid commissions after Heavey terminated his employment "on the same basis that our contract protected us, and in no other basis. Any other basis would have meant that we were paying him out of our own pockets rather than paying him with commissions that we collected from the companies we represented." The "contract" to which Mr. Ehret referred at this point was any contract between the Ehret corporation and any manufacturer that it represented and that made products for which Heavey procured an order.

From the form contract cited by Ehret that was made between the Philadelphia Gear Corporation (called "Company" in the contract) and the Ehret corporation (called "Sales Representative" in the contract), it appears that after notice of termination of the contract, "[no] commission shall become due to the Sales Representative on any orders either obtained or accepted after date of the termination of the Agreement." The form contract continued: "A representative who has been or has given notice of termination will receive commissions for a period of thirty (30) days after such notice on confirmed orders arising from proposals initiated and quoted by him." Although at most points in the form contract the term "Sales Representative" was used to denote the Ehret corporation, the form also occasionally used the term "his" in apposition to "Sales Representative" and occasionally used the mere term "representative" to refer to a "Sales Representative" and thus to the Ehret corporation.

It is apparent that the contract form was devised for use with either a corporate or a natural person as "Sales Representative" but that the language of the form was not uniformly neutral as to that point. Given such a context, it is equally apparent that the term "representative" in the quoted language regarding termination referred to the Ehret corporation itself and not to any individual salesperson who might be employed by the Ehret corporation. Thus, the logical interpretation of Mr. Ehret's testimony, about paying Heavey on the same basis that the Ehret corporation's manufacturer contracts "protected" Ehret so as to keep Ehret from having to pay Heavey out of its own pocket, is that if the Ehret-manufacturer contract were terminated, an Ehret salesperson would not be paid commissions on any orders that Ehret itself was not paid commissions on. However, this interpretation speaks only to termination between Ehret and manufacturer, not to termination between Ehret and salesperson. Consequently, under Mr. Ehret's own version of the contract between Heavey and ...

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