78 F. 101 | 7th Cir. | 1897
The action in this case is in assumpsit; the plea, nonassumpsit. The special count in the declaration charges that at the request of the defendant in error, the North Chicago Street-Railway Company, the plaintiffs in error constructed, and delivered in Chicago, a steam tramway motor, upon the promise of the defendant to pay therefor, when requested, a sum equal to the cost of construction, estimated at the regular rate charged by the plaintiffs for similar work, and that on that basis the machine was worth, and did actually cost, $10,000. A docket entry shows that, the cause coming on to be heard, the parties, by written stipulation, waived the jury, and submitted fte cause for trial by the court “as a case stated upon an agreed statement of facts, which statement and stipulation are as follows.” ■ The stipulation set out is not in exact accord with the entry. It is “that a jury shall be, and is hereby, waived, and said cause submitted to the court for trial upon the foregoing statement of facts,” and that “for the purpose of said trial the said statement shall be considered by the court to be in evidence, and as absolutely true.” Another entry states that “the court, having considered, and being now fully advised, finds the defendant' not guilty”; but, as such a finding is not responsive to the issue in assumpsit, it may be disregarded. It is shown by a bill of exceptions, in which the agreed statement of facts is set out, that the court, after hearing counsel, declared certain propositions of law, and refused others, which, in the view we take of the case, need not be stated, except the following: “The court further finds and holds the facts to be those set forth in the agreed statement thereof filed herein, and shown above, upon which agreed statement trial was had”; “and thereupon the court ruled that, upon the agreed facts in the case stated, the plaintiffs were not entitled to judgment against the defendants”; and “that the defendant was entitled, in law, upon said agreed facts in the case stated, to a judgment against the plaintiffs for its cost in the case incurred.” Judgment to that effect was entered.
The assignment of error contains numerous specifications, the last of which only, that the court erred in giving judgment for the defendant, need be considered. It is evident that the case was Submitted and tried upon a mistaken view of the so-called statement of facts, which in the main is a statement of evidence, and not of the ultimate or issuable facts. An.agreed statement of facts,