16 Ill. 495 | Ill. | 1855
Where it is appanent, as it is here, that the jury must have misunderstood, or disregarded the evidence or instructions of the court, or neglected properly to consider the facts, or overlooked prominent and essential points in them, and have failed to do substantial justice, we are compelled to set the verdict aside and grant a new trial. Wendell v. Safford’s Executor, 12 N. Hamp. R. 171; Inhabitants of Bangor v. Inhabitants of Brunswick, 27 Maine R. 351; Gordon v. Crooks, 11 Ill. R. 142.
A now trial will be granted also, for misdirections of the court on the law, or for withholding proper instructions, material to the case. We must treat the qualifications asked by plaintiff below to defendant’s fifth instruction, as of the former character, and under the circumstances reported in the bill of exceptions, as given by the court. Giving the paper to the jury, containing it amongst others given, and without remarks, or marking it refused, was calculated to mislead them. The qualification asked should have been refused, and the eighth instruction asked by defendant below should have been given. The contract specified that the materials should be the best, and approved before used, and when obtained, Lee should have asked their inspection and approval. Higgins may not be required to watch from day to day, for this purpose, or else be concluded as approving. If used without, it must be at the risk of Lee, who had specially agreed to furnish the best. The qualification asked by Higgins to Lee’s third instruction, scarcely differs from the modification given by the court. We waive the expression of any opinion upon Lee’s first and fourth instructions, believing the ¿matters therein clearly settled by the evidence ; and having no references to authorities on the argument, we do not deem the matter of sufficient importance to this case, to call for such an examination as would satisfy us to sanction or disapprove the rule here laid down. The court laid down the law in the various instructions given, and we are not able to account for the verdict, either upon the facts or the law.
The plaintiff in error had a right to recoup his damages sustained by reason of poor materials and inferior workmanship, and under the general issue, by way of reducing the amount of the recovery, under the quantum valebant, and quantum meruit counts; and by the amount of the damages so sustained, being deducted from the value of the labor and materials, as fixed proportionately to what is done by the terms of the contract. Decisions to this effect, and upon a great variety of facts and circumstances, fully sustain the rule. Loto v. Forbes, 14 Ill. R. 423; Koon v. Greenman, 7 Wend. R. 121; Epperly v. Bailey, 3 Porter Ia. R. 72; McKinney v. Springer, ibid. 59; Manuille v. McCoy, ibid. 148 ; Farmer v. Francis, 12 Iredell L. R. 282; Blood v. Enos, 12 Vermont R. 625 ; Merrow v. Huntoon and Dow, 25 Vermont R. 9 ; Hayward v. Leonard, 7 Pick. R. 180; Bowker v. Hoyt et al., 18 Pick. R. 555; Barber v. Rose, 5 Hill R. 76 ; Shaw v. Badger, 12 Serj. and Rawl. R. 275; Western v. Sharp, 14 B. Monroe R. 177.
Proofs and allegations must correspond. The instrument was not truly described in its material parts, and could not be read under the special count upon it. Where performance is alleged at the day, proof of performance under a parol enlargement, is not sufficient. Littler v. Holland, 3 Term R. top 324, bottom 581; Smith v. Brown, 3 Blackf. R. 22.
Neither will excuse for non-performance be received. Crandall v. Clark, 7 Barb. S. C. R. 169; Wathan v. Penebaker, guardian, 3 Bibb R. 99. Averment of demand, at a party’s usual place of residence, is not sustained by proof of demand at his still-house. 3 Bibb R. 267.
The specifications and plans are embraced within the terms of this contract, and Lee’s engagement bound him to do all the work on the walls and partitions, etc.', according to the plans and specifications. To, allow him to confine it in its moaning, to the state of the walls, partitions, etc., on the day of its execution, does look to us like assisting him to commit a fraud upon the other party.
•.All questions and inquiries, with a view to convert into extra work, what is so palpably included, were wrong, and should have been excluded.
Judgment reversed, and cause remanded for new trial.
Judgment reversed.
