25 Ill. 233 | Ill. | 1861
On the trial below,witnesses were asked, “if they were acquainted with the general ^reputation of Albin for truth and veracity among his neighbors, and those with whom he associated.” The impeaching witnesses had stated that they were acquainted with witness Albin, before this question was propounded. The court refused to permit the witnesses to answer the question, unless they first stated that they had heard a majority of all his neighbors speak of his character for truth and veracity. The question, as asked, conforms to the rule laid down by writers on evidence, and is free from all objection. It is also the rule adopted by this court. Fry v. The Bank of Illinois, 11 Ill. 367 ; Crabtree v. Kyle, 21 Ill. 180. The court below erred in not permitting the witnesses to answer the question. Had they answered in the affirmative, then the question might have been asked, whether that reputation was good or bad, and when answered, whether, judging from that reputation, they could believe the witness they were called to impeach, under oath.- It would then be for the opposite party, by cross-examination, to ascertain the extent of the information of the impeaching witnesses, and their means of knowledge.
The next question is, whether the plaintiff had the right to institute his suit, when a breach of contract had occurred, or whether he was bound to wait until the expiration of the time limited for its entire performance. The doctrine is well settled that when a breach of contract has occurred, an action accrues. After a breach, the other party may abandon the contract, and sustain an action for compensation in damages, or he may, if he choose, waive the breach, and insist upon the fulfillment of its other parts. When the party has a specified time within which to perform an act, the other party of course has no right to recover until after the time has expired. After the time has elapsed and the act has not been done, he may sue and recover for a non-performance, notwithstanding other things by the terms of the agreement remain to be performed, unless they in their nature are incapable of separation.
In this case defendant in error, it appears, leased a pasture to plaintiff in error, and agreed to fence it by the first of the following June. If he failed within that time, to fence the pasture according to his agreement, he undoubtedly became liable for all damages resulting to the plaintiff, by such breach of the contract. The agreement to perform this part of the contract, was an act which seems to have been independent of other portions of the agreement. The fencing of the pasture was a complete act of itself. It was not an inseparable part of another act. And no necessity is perceived why he should be required to wait, until the time for the performance of the last act specified in the agreement, had elapsed. If, however, he should recover for the breach of this portion of the agreement before the end of the time, his recovery would be limited to the damages sustained at the time of instituting his suit, and it would constitute a bar to any further recovery for a breach of this part of the agreement.
The same may be said of the agreement to furnish sufficient water for the cattle, that should be put into the inclosure. It is however insisted that this part of the contract is too indefinite, to authorize a recovery. This, like all other agreements, must receive a reasonable interpretation, according to the intention of the parties, at the time of executing it, if that intention can be ascertained from the language they have employed for that purpose. It does not appear that any definite number of cattle were agreed upon or spoken of by the parties, at the time the agreement was made, for which defendant was to supply water, or that were to be placed upon the pasture. But as the inclosure was leased for the purpose of pasturing cattle, the presumption is that each party understood that a greater number would not be placed upon it, than it would reasonably support, and that the defendant was only to supply water sufficient for that number. The presumption is, that neither .party expected the pasture to be surcharged, or that defendant would have the right to refuse to furnish water for a smaller number than the pasture would reasonably sustain. And if plaintiff placed upon it a larger number, it would give him no right to require defendant to supply a greater quantity of water, nor would it release him from furnishing the necessary supply for a reasonable and proper number, for the support of which the pasture was adequate. If defendant failed to perform this part of his agreement, he must be held liable for all, proximate damages, resulting from its breach.
The sixth instruction announced as a rule, that if the witness testified wilfully false, as to any fact, that the jury should altogether reject, his evidence. This instruction as given, is too broad. If he had so testified, to a material fact, and there were no circumstance in the case tending to corroborate his evidence, then the jury would have the right to reject all of his evidence as unworthy of credit, but they should not reject such portions as might be corroborated by other unobjectionable evidence in the cause. They are the judges of the weight to be given to such evidence, and it is their duty to determine whether it is supported by. other testimony, and if so, to adopt and give it such weight as it deserves, otherwise to reject it. The same instruction is too broad in directing the jury that they should reject the evidence of a witness who makes contradictory statements on the stand. When the witness contradicts himself in a material part of his evidence, and should do so wilfully and for the purpose of concealing the truth, he would be unworthy of belief, except so far only as he 'might be supported by other evidence in the case. But if a contradiction should occur through inadvertence, or in reference to some matter immaterial to the issue, such a contradiction should not of itself render his evidence unworthy of credit.
The judgment of the court below is reversed, and the cause is remanded.
Judgment reversed.