delivered the opinion of the court:
The affirmance of the judgment by the Appellate Court settles all controverted questions of fact adversely to the contention of appellants.
It is contended by appellants that under the bill of particulars filed in this case recovery could not be had under the common counts. It is well settled law that where there is an agreemеnt to pay a certain sum in specified articles of personal property, at agreed prices, on a particular day, a failure to deliver the articles on the day fixed in the agreement converts the transaction into a money obligation. (Borah v. Curry,
Apрellants insist that there is a variance between the bill of particulars and the evidence, in that the bill of partiсulars, states that the balance of the amount was to be given in pictures at agreed prices, while the evidence shows that McKinnie was to pay the balance in pictures or in cash. The object of a bill of particulars is to inform the defendant of the claim he is called upon to defend against, and its effect is to limit and restrain thе plaintiff, on the trial, to the proof of the particular cause or causes of action therein mentioned. (Morton v. McClure,
Appellants complain that it was error to instruct the jury that if they “find, from the evidence, that the defendant was to pay for said pictures $1700 in cash and $1800 either in cash or other pictures,” then the issues should be found for the plaintiff. It is contended that the expression “either in cash or other pictures,” contained in the instruction, is error, because the bill of particulars mentions pictures only. This instruction was proper under the evidenсe.
Instruction No. 2 given on behalf of appellee was as follows:
“The court instructs the jury that the credibility of the witnesses is a question exclusively for the jury, and the law is, that where a number of witnesses testify directly opposite to each other the jury are not bound to find the weight of the evidence as evenly balanced, and the jury have a right to determine, from the appearances of the witnesses on the stand, their manner of testifying, their apparent candor and frankness, their apparent intelligence, and from all other surrounding circumstances attending the trial, whiсh witnesses are the more worthy of credit, and to give credit accordingly.”
In this instruction appellants object tо the use of the words, “from all other surrounding circumstances attending the trial.” Without the use of these words the instruction states the law. Appellants’ instruction No. 6 contains these words: “The jury have a right to take into consideration all the fаcts and circumstances connected with the case.” Appellants’ instruction contained words of the same import and meaning as the instruction objected to. A party cannot complain of an instruction given on behаlf of his adversary like one given at his own request. Springer v. City of Chicago,
Appellants assign error on alleged improper remarks by appellee’s counsel in his address to the jury. We have rеad the remarks insisted on by appellants as error and see nothing in them to condemn. Appellee had testifiеd that it was his custom in dealing with wealthy patrons, when taking pictures in part payment for sales, to give a receipt in full and later to call for the pictures. It was certainly proper for him to explain to the jury the reasons why hе gave a receipt in full to Dr. McKinnie, and comments made by counsel in his .argument were in line with the evidence and tended-in no way to prejudice appellants’ interests.
There is no error in the record, and the judgment of the Appellate Court for the First District is affirmed.
Judgment affirmed.