22 Ill. 288 | Ill. | 1859
We are satisfied on an examination of the facts of this case and the instructions of the court, that a new trial should be awarded. It is true, as a general rule, courts will not interfere to set aside verdicts, where it is believed the jury has decided against the weight of evidence, and against the instructions of the court, provided it appears from the whole record, that substantial justice has been done. This is pre-eminently the rule in actions ex delicto, where juries have no well assigned limits within which to bound their judgments. It is somewhat different in cases ex contractu. Such cases furnish of themselves the rule, and whenever juries transgress it, their verdicts should be unhesitatingly set- aside.
The meaning of the contract in this case, taken in its most favorable aspect for the appellee, is, that he should make all reasonable efforts to deliver the wheat if not by the first of November, as soon after that day, as by the exercise of reasonable diligence he would have been enabled to do. The proof, is, we think, conclusive, by such exercise, he could have delivered the whole quantity contracted for by the first, or middle of December. A man really desirous of performing such a contract, could have delivered the wheat, and without extraordinary exertion, by the first day of December. This the whole testimony fully shows. Eldridge v. Rowe, 2 Gilm. R. 96; Taylor v. Beck, 13 Ill. R. 386. Speculating upon the chances of the war with Russia being prolonged which would raise the price of wheat to one dollar and fifty cents per bushel, may account, perhaps, for his long neglect in the delivery. He has shown no diligence or desire to perform the contract.
The proof shows also, that as late as May 12th, appellee did not consider that he had performed the contract, as at that time he offered to sell the wheat then in the warehouse, stating that he had once sold it to appellants, but had not delivered it according to contract,—that they would not have it, and wanted a purchaser. Bannister v. Read, 1 Gilm. R. 92-100.
Besides, it is proved, the wheat when delivered, was damp and unmerchantable, not such wheat as the appellants had contracted to purchase. Exposed the whole winter and part of spring to the weather, it had ceased to be such an article as they had contracted for in the preceding October. When in the stack, there was an implied warranty, that the wheat was merchantable. Misner v. Granger, 4 Gilm. R. 69.
There is proof also, and well worthy the attention of the jury, that the wheat was actually the property of Horatio Rose-berry, the principal witness in the cause. The warehouseman receipted to him for it, he claiming it as his own, at the time of delivery, and it was so entered on the books.
Under the contract as proved, the greatest degree of diligence was required of the appellee, to deliver the wheat at the earliest possible day. The first instruction, .seems to be based upon a less degree of diligence as requisite on his part, and if it deteriorated, before its delivery, the loss must fall on the appellants. A more unjust proposition could not be stated. The jury are in effect told, that the appellee may idle away his time, his sons refuse to work when they might work,—no great effort be made to obtain machinery for threshing, and no care taken to protect it from the weather, and if thereby, there is a loss by injury to the wheat, the appellants must bear the loss. This is neither law, justice or good sense.
The appellee has made out no case whatever against the appellants. He has neither performed his contract, nor endeavored to perform it. The appellants have never received the wheat, nor are they shown to have been in fault; and no verdict, under the proof in the record should be rendered against them. Parties should be held to a reasonably strict performance of their contracts, as well for the delivery of wheat as any other article, and cannot be permitted unusual delay, waiting for a rise in the price, and failing in that, deliver the article when the price is down. The instructions given on behalf of appellants were substantially correct, as well those modified, as those originally asked, but the jury seem to have disregarded them. The justice of the case being wholly with the appellants, the judgment, for the reasons given, is reversed and the cause remanded.
Judgment reversed.
