*

*

to our minds it is clear that the results claimed by the plaintiffs in error do not necessarily follow. While it is true that the defendant in error by his petition has proceeded against both jointly, it by no means follows that the verdict must be against both or neither. A cause of action against both the plaintiffs in error is stated in each (of certain counts;) the proof makes a case against one of the plaintiffs in error, but in our opinion not as against the other. Could not the jury have found against one and not the other, and their verdict stand? If so, why cannot a new trial be granted to one and not the other? * **Tort feasors are jointly and severally liable. An action may be maintained against one or all at the option of the injured party. Several and separate judgments may be rendered in separate actions, but the satisfaction of one satisfies all, and to this extent only may their liability be said to be joint."

Section 23 of the Practice act of Illinois provides that, "at any time before final judgment in a civil suit, amendments may be allowed on such terms as are just and reasonable, * discontinuing as to any joint plaintiff or joint defendant." (3 Starr & Cur. Ann. Stat.-2d ed.p. 3000). In Davis v. Taylor, 41 Ill. 405, we held that, inasmuch as all torts are joint and several, there can be a judgment against one defendant without disposing of the case as to the others, and the defendant, against whom the judgment is taken, cannot assign the fact as error. In the latter case we said (p. 408): "It was held in Dow v. Rattle, 12 Ill. 373, which was an action of assumpsit, to be error to render final judgment against part of the defendants, without disposing of the case as to the others. * * * We are of opinion, that the rule should not be applied to actions of tort. There is no reason for thus applying it, because there is no contribution among wrongdoers. Taking a judgment against a portion of the defendants amounts to a dismissal of the case as to the residue, and, in actions ex delicto, this may be done.

If the mode of doing it is irregular, it is an irregularity which works no prejudice to those defendants against whom the judgment is taken. They should not, therefore, be permitted to assign it for error."

Third-It is contended that there was a variance between the evidence and the declaration, and that the trial court erred in refusing to exclude such evidence upon the motion to that end made at the close of the plaintiffs' evidence, and again after all the evidence was in.

Upon this branch of the case we concur in what is said by the Appellate Court in their opinion in this case, which is as follows (p. 398): "In Swift v. Rutkowski, 182 Ill. 18, where a similar motion was made at the close of plaintiff's evidence, the court said: 'It is a well settled rule that a party desiring to take advantage of a variance between the declaration and the evidence should object to the evidence when offered and point out wherein the variance consists, so that the other party may amend the declaration and thus avoid the objection. If this course is not pursued the objection to the evidence will be regarded as waived.' If the objection was so made in the present case our attention has not been called to it. It appears only to have been made after the plaintiffs had closed their evidence, when the right to make it had been waived. But aside from the waiver, we do not regard the objection as well taken. The proof substantially sustains the declaration as to the material averments and as to particulars essential to recovery."

The main ground of variance, complained of by appellant, is that the plaintiffs charged in their declaration a delivery of the freight to the defendants jointly at Chicago, when it was in fact a delivery to the appellant alone. We do not understand the declaration as charging the delivery to have been a joint delivery. If the proof showed a delivery to any one defendant at Chicago, the pleading was good as to that one; or, if the proof showed a delivery to a defendant at Chicago who

received the goods for the other defendant, it would still be a delivery as to all the defendants at Chicago. There was no variance in this case because all torts are joint and several, and the jury may find one or any guilty, or one or any not guilty. (Baker v. Railroad Co. 42 Ill. 73; Indianapolis and St. Louis Railroad Co. v. Hackethal, 72 id. 612; Frink v. Potter, 17 id. 406; Swift v. Rutkowski, supra). If A and B are tort feasors, a delivery to A alone supports a judgment against him. In addition to this, the bills of lading, issued to appellees at Malvern, Iowa, show that the appellant became the agent of appellees to deliver the cars to the succeeding carriers. The law being that the carrier, who delivered these cars to the appellant at Chicago, was the agent of appellees, and made the delivery on their behalf, the delivery to appellant was in contemplation of law by the appellees through their agent, and there is no variance between the declaration and the proof on this point. (Hutchinson on Carriers,-2d ed.-sec. 108.)

Fourth-It is charged by the appellant, that the first instruction, given by the trial court for appellees, was erroneous upon the alleged ground that it enumerates a number of facts in favor of the appellees, and ignores the defense of appellant, that the mistake in billing was the mistake, not of appellant acting for itself, but as agent for the "Big Four." There was no error in the instruction in this regard. The question, whether or not the relation of principal and agent existed between the "Big Four" and the appellant, depended upon the construction of the written contract herein before referred to. The interpretation or construction of written contracts is a question of law for the court, and not one of fact for the jury. (Adams and Westlake Manf. Co. v. Cook, 16 Ill. App. 161; Kamphouse v. Gaffner, 73 Ill. 453; Belden v. Woodmansee, 81 id. 25). Hence it would have been improper to submit to the jury, by an instruction given to them, the question whether the written contract between

the parties could be so construed, as to indicate that the relation of principal and agent existed between them. That this question was one of law for the court, and not of fact for the jury, was conceded by the appellant when it made its objection to all the evidence and thereby in effect asked the court to rule upon the contract as a matter of law.

Fifth-It is said that the court admitted improper evidence on behalf of the plaintiffs. A witness was asked what the condition of the car-load of potatoes, referred to in a certain letter shown to him, was when it arrived in Philadelphia, and he answered that the car-load of potatoes was in bad condition. It is said that this question called for a conclusion of the witness. We think that the condition of the potatoes upon their arrival in Philadelphia was a question of fact, and that the statement as to the condition of the potatoes, whether good or bad, was not a conclusion from their appearance. It is complained that the witness did not pretend that he had ever seen the potatoes. Whether or not he had seen them was ground for cross-examination; but his answer shows that he knew their condition. Moreover, the answer was given in a deposition taken upon notice; and the objection was one that could be obviated by better evidence, so that the proper method, in which it should have been urged, was by making a motion to suppress the deposition. No such motion was made before the trial, and it was too late to make it at the trial. (Balkwill v. Bridgeport Wood Furnishing Co. 62 Ill. App. 663.)

Some other objections are made to the evidence, but we do not regard them of sufficient importance to require further discussion.

The judgment of the Appellate Court is affirmed.
Judgment affirmed.

THE NATIONAL LINSEED OIL COMPANY

v.

THE HEATH & MILLIGAN COMPANY.

Opinion filed June 19, 1901.

1. COURTS-duty of Appellate Court to recite facts—when not excused. The duty of the Appellate Court to recite in its final judgment the ultimate facts as found by it, where its reversal of a judgment at law is the result of its finding the facts different from the trial court, is not excused by reason of the fact that the evidentiary facts were presented to the trial court in the form of a stipulation, in which such evidentiary facts were agreed upon but the ultimate fact was left open.

2. SAME facts need not be recited in Appellate Court's final judgment if ultimate facts are agreed upon. If the parties agree upon the ultimate fact or facts the only questions for the courts are those of law, and if, in such case, the Appellate Court reverses and enters final judgment no recital of facts in such judgment is required to permit its being reviewed by the Supreme Court on appeal or error.

Heath & Milligan Co.v. Nat. Linseed Oil Co. 93 Ill. App. 13, reversed.

APPEAL from the Branch Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. ELBRIDGE HANECY, Judge, presiding.

The National Linseed Oil Company, a corporation of this State, engaged in the business of manufacturing and selling linseed oil, sold to the Heath & Milligan Manufacturing Company, another corporation, engaged in the business of manufacturing and selling paints, large quantities of linseed oil. The sales were made from time to time, extending over a period of more than five years. The contracts were for the sale and purchase of so many gallons of linseed oil. It was furnished by the seller on the basis of 7.5 pounds to the gallon and received and paid for by the purchaser, the National company claiming that it was accepted and paid for with the full knowledge on the part of the manufacturing company that it was furnished on that basis. After some twenty differ

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