41 Ill. 197 | Ill. | 1866
delivered the opinion of the Court:
It appears from the record in this cause, that the instructions asked by counsel for both parties were refused by the court, the court undertaking to give, instead thereof, an instruction of its own, in its own phraseology. We have examined the record for this instruction, and are satisfied it would have embodied the law correctly, but for the omission of a few very important words, which omission was doubtless accidental, but destroys the meaning of the instruction.
The instruction is, verbatim, as follows: “ This action is brought to compel the defendant to indemnify the plaintiff for acts done by the latter as agent of the former. The fact that the defendant was the principal, and the plaintiff was his agent, is not in dispute, and, under ordinary circumstances, the liability to indemnify follows, as of course. The failure to enter the receipt in question in this ease upon the hooks, if caused by the carelessness, neglect or default of the plaintiff, and, if the defendant was injured by such failure, would, to the extent of such injury, reduce or discharge the liability of the defendant, but, if the defendant was not injured by such failure, then it would have no effect.
“ But a more serious question in this case is, whether the plaintiff, at the time the agency terminated, wrongfully took into his possession and withheld from the defendant, until the defendant would submit to pay him a share of the profits of the business beyond his salary, and beyond what he was entitled to by any agreement between them; because, if that be so, the defendant, to the extent to which he was injured by such conduct of the plaintiff, would be discharged from the liability imposed by law upon him to indemnify the plaintiff as his agent. If the property consisted of receipts or orders issued to the plaintiff, it would make no difference as to the right of the plaintiff to deprive the defendant of the control of them, if in fact they were the property of the defendant.”
“ Took into his possession and withheld from the defendant,” what ? There is an omission of important words here, which we are not at liberty to supply, and which with the volume of matter contained in it makes the instruction obscure and calculated to confuse and mislead the jury and be of no use as an aid to their arrival at correct results. Counsel, on both sides, have taken the liberty, in their arguments, of changing the instruction given, but a resort to the record shows that it was in the identical words in which we have given it. It, being confused and obscure, was calculated to mislead, and was therefore erroneous, and must reverse the judgment.
Upon the merits, we may say, if the appellee was not entitled to the six thousand dollars paid him by appellant, appellant must be shown to have paid it under some kind of legal duress before he can recoup.
For the reasons given, the judgment is reversed and the cause remanded for a new trial.
Judgment reversed.