| Ill. | Sep 28, 1882
delivered the opinion of the Court:
This action was brought by the De Steiger Glass Company, against C. M.-& J. S. Capen, to recover for fifty-four gross of the Mason patent fruit jars, at the rate of $16 per gross, which plaintiff had sold and delivered to defendants. There is no controversy as to the number of jars plaintiff had delivered to defendants, nor as to the number not paid for, or as to the price. ' The defence insisted upon is, that plaintiff had contracted to -sell- and deliver to defendants five hundred gross of such jars, at prices agreed upon, but had failed to deliver two hundred and ninety-nine gross, and by reason of such failure defendants had sustained damages in excess of any sum due plaintiff, which they, by their pleas, offered to set off against the claim of plaintiff, and asked for a judgment over for- any sum that might appear to be due to them. The cause was submitted to a jury in the circuit court, who returned a verdict for plaintiff, and assessed its damages at $500. A motion for a new trial was entered. Plaintiff thereupon entered a remittitur of $50, and the court overruled the motion for a new trial and rendered judgment on the verdict for $450 in favor of plaintiff. That judgment was affirmed in the Appellate Court, and defendants bring the case to this court on appeal.
A motion has been made to dismiss this appeal because the sum of $1000, exclusive of costs, is not involved. That motion Was reserved to the final hearing, that it might be more fully considered ■ than it could be on a mere motion. The question as to the jurisdiction of this court to hear the appeal has been fully and carefully considered, and a majority of the court are of opinion the case falls within the rule declared, in Moshier v. Shear, 100 Ill. 469" date_filed="1881-09-15" court="Ill." case_name="Moshier v. Shear">100 Ill. 469, and that on the authority of that decision the motion to dismiss the appeal should be overruled. On this point in the ease the writer of this opinion does not agree with the majority of the court.
Of the set-off pleaded, defendants, by the judgment of the trial court, were allowed |414, which was deducted from the amount of plaintiff’s claim. The amount of damages sustained by defendants on account of the alleged breach of their contract with plaintiff could only be ascertained from the evidence, which was quite conflicting. It'was the province of the jury to weigh the evidence and determine the facts. That was done, and since the Appellate Court, by the affirmance of the judgment, found the facts the same way, the finding of the latter court is conclusive upon this court, and by the Practice act no assignment of error shall be allowed which shall call in question the determination of the inferior or Appellate Court upon controverted questions of fact, in cases like the one being considered. It only remains, therefore, to consider such questions of law as arise upon the record.
Two objections are. insisted upon as being fatal to the present judgment: First, that the court- admitted improper evidence for plaintiff, and refused proper evidence tendered by defendants; and second, that the court erred in giving and refusing instructions. Most complaint is made as to • the testimony of the witness De Steiger. It will be seen on examination that the testimony of that witness, as given on his direct examination, is unexceptionable. That part of his evidence to which objection is taken, was brought out on cross-examination of the witness by counsel now insisting it is improper. Of that there can be no just ground for complaint. Counsel will not be allowed to cross-examine a witness, and if the testimony elicited is not satisfactory, have it excluded. That "would enable a party to experiment with a witness, which is not allowable. The same may be said as to the testimony of other witnesses to 'which exceptions were taken. In the action of the court in refusing to exclude testimony called out by defendants on cross-examination, there was no error hurtful to defendants. Nor was there any error in the ruling of the court in excluding testimony tendered by defendants. A postal card and a letter received by mail from manufacturers or dealers in the class of goods in controversy, in answer to letters addressed to them, were offered by defendants, as evidence, but the court refused to allow them to be read to the jury. It is not perceived on what principle these letters could be admitted as legitimate evidence. If it were desirable to prove the facts to which the letters refer, the depositions of the parties should have been taken in the usual mode, or the witnesses produced in open court, that they might be subjected to cross-examination.
As respects the measure of damages for the alleged breach of the contract pleaded, the law is, defendants would be entitled to recover the difference between the contract price and the market value of such articles at the time and place fixed by the contract for delivery. If the articles could not then be had in the market where, by the contract, they were to be delivered, the rule is they may be bought in the nearest market, and the additional cost of getting the goods there would be the cost in the market where they were to be delivered. It will be seen the instructions given conform with sufficient accuracy to this view of the law, and there was no error that could affect injuriously the defence made in the rulings of the court in giving and refusing instructions. Indeed, the instructions, considering them altogether, state the law as favorably for defendants as they had any right to ask to have it given to the jury.
No error appearing in the record that can be reviewed in •this court, the judgment of the Appellate Court must be affirmed, which is done.
Judgment affirmed.