| Ill. | Apr 15, 1864
delivered the opinion of the Court:
Under the’general assignment'of error, that the court should have granted a new trial, the plaintiff' in error may urge the rejection of proper and the admission of improper evidénce. Also) the giving of improper and' the refusal' of proper instructions, and that the' evidence "does not sustain the verdict. - These are all grounds for granting a new trial, and need not be specifically enumerated, but are embraced in the general assignment of error that the court refused to grant a new trial.
It is insisted, in favor of a reversal, that the evidence fails to sustain the finding of the jury. Loomis testifies, that appellant under the contract was to finish the protection wall, and erect their tank, and have the use of the water pumped into the tank by appellee, for one year, as a compensation for the expense of erecting the wall. On the other hand, Goulogue testifies, that appellant was to construct the wall and build the tank, and have therefor the use of the water as long as they desired. In this contrariety in the evidence of the persons who made the contract, it was a question for the jury to determine, from all of the circumstances, to whom they would give the credit.
In support of Loomis’ evidence is the fact that, after the expiration of the year, and a difference had arisen as to the right to use the water by appellant, they reduced the price of switching appellee’s coal cars, from a dollar to fifty cents each, being only one-half of the previous charge. And afterwards, when appellee made other arrangements, by which they did not require appellant to switch their cars, and an account was presented for the rent of a lot in Chicago, used by appellee to store coal, at a charge of forty dollars per month, a claim for rent for the water was made, and the matter was adjusted by the charge for supplying water settling the account for the rent of the lot. And. mutual receipts were passed between the parties. This occurred in the winter of 1859. These circumstances seem strongly to corroborate Loomis’ version of the contract. Ro other motive is perceived for the reduction of the price of switching the cars and receipting the account for the rent of the lot, in consideration of the supply of water. Otherwise they would certainly have insisted upon Coulogue’s view of the contract. We.are therefore of the opinion that the jury were warranted in finding the verdict
Nor is it an answer to say that the water was going to waste, and was applied to no use by appellee. The true question is, what was the value of the water to appellant ? That is the true measure of the damages in the absence of a special contract. The Chicago South Branch Dock Co. v. Dunlop, 32 Ill. 207" date_filed="1863-04-15" court="Ill." case_name="Chicago South Branch Dock Co. v. Dunlap">32 Ill. 207. In this case the jury has found there was not a special agreement extending beyond one year, and after that time the damages would have to be measured by the value of the use of the water by appellant. We think the evidence shows that the wall and tank were built with the consent but not at the request of appellee. And if so, it is a matter of no consequence to inquire what it would have cost to convey this water away by a drift. These were questions outside of the case, and we cannot see that such "evidence could have shed any light on the issues then before the jury. The water was of use to appellant, they appropriated it, and thereby rendered themselves liable to pay what it was reasonably worth.
It is insisted that the court erred in not permitting Young to testify as to the cost "of finishing the wall and constructing the tank. This evidence was called for on the cross-examination of the witness, and it had no reference to any portion of his testimony in chief. At that time it was not their right to call out this evidence, and it could only have been done as rebutting evidence, except by the exercise of the discretionary power of the court. On cross-examination the court is not bound to permit an examination on questions about which no evidence was given by the witness in his examination in chief. If this evidence was material, appellant should have called the witness as his own, when he came to rebut appellee’s evidence. But Johnson, appellant’s engineer, gives the substance of what was intended to have been proved by Young.
After a careful examination of the entire record, we can only say, that the evidence was conflicting, but the jury were nevertheless warranted in finding as they did, and we feel ourselves unauthorized to disturb the verdict. ISTor do we perceive any error for which the judgment of the court below should be reversed, and it is therefore affirmed. :-
Judgment affirmed.