Whether or not the conduct of counsel for Ogden Corporation amounts to a waiver as to the date of the expiration of the contract or operates to estop Ogden Corporation from exercising its right to terminate the contract as of August 19, 1940, depends upon the law of the State of Illinois bearing on these points and in this connection the following cases are noted.
In the case of Wabash, St. L.&P. Ry. Co. v. McDougall, 126 Ill. 111, 18 N.E. 291, 193, 1 L.R.A. 207, 9 Am.St.Rep. 539, the Court says: 'No argument or citation of authorities is needed to show that attorneys employed to represent the company on trial could not bind it by their agreement as to the plan of constructing its road. It is not claimed that they were given any such special authority.'
In Rubel v. Title Guarantee & Trust Co., 199 Ill, 110, 64 N.E. 1033, 1034, the following appears in the syllabus: 'That, in condemnation proceedings, the attorney for the tenant of a building to be condemned asked the court to determine the question of his liability for rent, and that the attorney for the railroad seeking to condemn said nothing, is insufficient to show that the company was bound as to the rent by a judgment subsequently entered.' And in that case, the Court said: 'The offer of proof of what was said by the attorney of appellants at the trial of the condemnation suit did not go far enough to make it binding upon the railroad company. It does not appear from the offer that the attorney for the company assented to the proposition that the court take into consideration the rent then due and that might accrue upon the leasehold in fixing the amount for which judgment should be rendered in appellants' favor in the condemnation suit. Mere silence on his part would not bind the company. Neither does it appear from the offer said attorney had any authority to make such a stipulation on behalf of the company; and, if he did not have such authority, the stipulation, if made, would not have been binding upon the company.' (Emphasis added.)
And in Noel State Bank v. Blakely Real Estate Imp. Corporation, 321 Ill.App. 594, 53 N.E.2d 621, the syllabus reads: 'Master in chancery knowingly submitting a false report reciting that a certain sum had been retained from proceeds of sale on foreclosure of trust deed subject to adjudication of priority of lien claimed by a third person would not be permitted to escape the consequences of his act by repudiating and contradicting his official report so as to show that actually with full knowledge of all parties and attorneys representing them, no cash was paid except a small amount and that nothing was retained subject to adjudication of question of priority of lien.' The Court said: 'Neither was any attempt made to show any authority of the attorney to acquiesce in such uncertain arrangements and thereby waive Cuzzone's right to have the premises sold for actual cash and his lien satisfied out of the proceeds. An attorney does not have implied authority to waive substantial rights of his client.' (Emphasis added.)
The foregoing Illinois cases involve relations between attorney and client. Where agency is involved the following cases are noted:
In Gerrish v. Maher, 70 Ill. 470, the syllabus reads: 'Where an agent is employed merely to carry out and perform a contract already made by his principal, he is not authorized to change the contract, or to make a new one. Where a party sold land to another, to be paid for part in cash and part on time, the cash payment to be made, and the deferred payments to be secured by trust deed, when the vendor should deliver a warranty deed, and an abstract showing good title to the purchaser, and the agent of the vendor, by his direction, tendered such deed and abstract to the purchaser, and demanded performance of the contract, and the latter failed to perform, and afterwards claimed that the agent agreed to give him further time: Held, that the agent had no authority to give any extension of time, his authority being simply to perform the contract already made, and not to make a new one.' (Emphasis added.)
In Lawrence, etc. v. Johnson et al., 64 Ill. 351, the syllabus reads: 'Where a person is employed merely as an agent to collect a promissory note, he cannot, without the consent of his principal, make a contract with the principal maker of the note to extend the time of payment, and then discharge the sureties on the note of their liability. (Emphasis added.)
In each instance where an extension of time was considered by the parties herein, they reduced their agreement to writing bearing the signature of Lewis and the duly constituted officers of the Ogden Corporation. Such then having been the course of conduct of the parties, and the amount involved being over a million and a half dollars, a stronger affirmative allegation must appear in the record than is found here before an extension of time can be read into the contract in variance of its terms.
At the final appearance before the Commission, counsel for Ogden Corporation was placed in a most difficult position when the question of further time was broached. His client's contract bound it to do nothing in the direction of delay, It provided a burden on the Ogden Corporation to 'proceed promptly,' hence he was himself so bound. Moreover if he agreed to an extension of time he was acting in direct violation of his client's written contract as to the expiration date. In such a posture it is my view that the attorney for the Ogden Corporation could not bind his client beyond the terms of the contract without express authority to do so or in the absence thereof the presence of some positive conduct on the part of its executive officers from which a waiver or an estoppel could be found. No such conduct appears here.
The action of the Ogden Corporation in withdrawing its application before the Commission took place after the contract had terminated and such withdrawal to close the record at the request of the Commission cannot be construed against it.
In the arguments and in the briefs the doctrine of time as of the essence is considered. It is my view that, strictly considered, the doctrine does not apply here; it is generally invoked only in those instances where the parties have obligated themselves to do or perform specific acts within a time expressly limited. Here the contract contemplates the performance of certain acts by a Court and a Commission functioning beyond the control of the parties. No promise or covenant appears wherein either party is bound to attempt to inflict a limitation of time upon either of these forums and indeed they could not validly do so. Therefore desiring to protect themselves against delay over which they could exercise no control and dealing as they were with securities of possible fluctuating values they considered the element of time and made it a condition nullifying the contract on a day certain on failure of the approvals sought. I therefore conclude that the approvals not having been obtained within the time limited the contract terminated on August 19, 1940.
Judgment final will be entered in favor of the defendant Ogden Corporation and since the liability of the defendant Atlas Corporation was dependent upon the liability of Ogden Corporation, the like judgment will be entered in its favor.
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