dissenting:
The judgment at issue results in the specific performance of an alleged oral contract for a “monthly retirement benefit of $500,” together with an agreed $35,000 to be paid from the general funds of the defendant union.
It is generally recognized that tire conduct and business affairs of a labor union is governed by the constitution and bylaws of such union. 24 Ill. L.&Pr. Labor Relations § 12, at 158 (1956); O'Brien v. Matual, 14 Ill.App.2d 173, 144 N.E.2d 446.
The amended complaint alleges that “officials and agents of the defendant” orally agreed that plaintiff would be paid “retirement benefits” by the defendant union. One claiming the authority of an agent must prove such authority by a preponderance of the evidence. Easterday v. Marchman, 36 Ill.App.2d 321, 183 N.E.2d 182.
The only evidence by plaintiff of the “agent’s authority” to contract for such retirement benefits from the union funds is the description as officers of the defendant. From such status the principle opinion concludes that it is reasonable to assume that the officers had such authority. The record shows that plaintiff, in fact, succeeded in keeping the Union constitution and bylaws from being introduced into evidence upon the issue of authority. In terms of the quotation from section 27 of the Restatement (Second) of Agency (1958), there is no evidence that such oral contracts were among the “generally recognized duties” . of the officers or that the making of such oral contracts was “one of the things ordinarily entrusted to one occupying such a position.”
The amended complaint alleges that plaintiff was an “employee” of defendant and his testimony shows that plaintiff was a member of the union and was aware of and discussed with union officers the pension plan, provided for employees of the defendant. The purported conversations with the union officers upon which plaintiff testified were generally in terms of his obtaining a pension. The correspondence introduced by plaintiff as exhibits shows that he was speaking of “my retirement pension from the United Mine Workers,” and of “an application for my pension.” Despite such pleading and evidence, plaintiff, at trial, disavowed that he was an employee of the union or that he came under the union employee’s pension plan, but seeks to recover an amount equal to the pension provided in the plan through the asserted oral agreements.
As pointed out in defendant’s motion to dismiss the amended complaint, the plaintiff’s original complaint was framed in terms of a pension under the union pension plan, but by reason of the pleading and procedure followed such issue cannot now be reached.
The evidence of authority to make an oral agreement for “retirement benefits” from union funds separately and distinguished from the authorized pension plan is not sufficient to support the specific performance provided in the judgment.