230 Ill. 544 | Ill. | 1907
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 agreement 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, 12 Ill. 66; Smith v. Dunlap, id. 184; Bilderback v. Burlingame, 27 id. 338; Sleuter v. Wallbaum, 45 id. 43.) In the case at bar there was no agreement fixing the date for the delivery of the pictures. In such case the law will presume delivery to be made on demand or at least within a reasonable time. The record shows that after delivering the paintings to McKinnie and receiving the $1700 in money and $100 in pictures appellee waited two years before bringing suit, making during that time repeated demands for the pictures. Appellee did all the law required of him, and when McKinnie refused to deliver the pictures as agreed, he became liable to pay in money to appellee the sum which they had agreed the pictures would have represented had they been delivered. The common counts were sufficient to support that cause of action. The law is well settled that where a contract has been fully performed and nothing remains to be done but to pay the money, a recovery may be had under the common counts.
Appellants insist that there is a variance between the bill of particulars and the evidence, in that the bill of particulars, 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 the plaintiff, on the trial, to the proof of the particular cause or causes of action therein mentioned. (Morton v. McClure, 22 Ill. 257; McDonald v. People, 126 id. 150; Waidner v. Pauly, 141 id. 442.) ■ At the conclusion of his evidence appellee asked leave to amend his bill of particulars by inserting the words “or cash,” in order that the supposed variance might be obviated. Upon objection by appellants he was not permitted to make the amendment. A bill of .particulars may be amended, and it was proper for appellee to ask leave to amend and leave so to do should have been granted. (Morton v. McClure, supra; Waidner v. Pauly, supra.) If the bill of particulars had been amended as requested there would have been no ground to claim that a variance existed. The refusal of the court to permit the amendment occurred through the objection of appellants, and they are not now in position to urge the variance, even if the point was raised below. A party cannot complain of an error which he induced the court to make or to which he consented. Smith v. Kimball, 128 Ill. 583; Olivers v. Oliver, 179 id. 9; Conness v. Indiana, Illinois and Iowa Railroad Co. 193 id. 464; Glos v. Murphy, 225 id. 58.
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 evidence.
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, which witnesses are the more worthy of credit, and to give credit accordingly.”
In this instruction appellants object to 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 facts 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 behalf of his adversary like one given at his own request. Springer v. City of Chicago, 135 Ill. 552; Consolidated Coal Co. v. Haenni, 146 id. 614; Funk v. Babbitt, 156 id. 408.
Appellants assign error on alleged improper remarks by appellee’s counsel in his address to the jury. We have read the remarks insisted on by appellants as error and see nothing in them to condemn. Appellee had testified 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 he 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.