151 N.E. 884 | Ill. | 1926
Frank Simon entered into a contract with T.E. Dunn to purchase certain real estate and paid $1000 earnest money, which the contract provided should be held by Frank K. Reilly, the broker who negotiated the sale; who was to retain three per cent commission on the purchase price. The contract provided for the payment of $5300 in eight per cent bonds of the Jackson Fire Brick Company of Jackson, Tennessee, and these were also delivered to Reilly though the contract did not provide for such delivery. The contract was abandoned, and the bonds not being returned Simon brought an action of trover in the municipal court of Chicago against Reilly for their conversion. He recovered a judgment for one cent and costs. Not being satisfied with the amount of the verdict he appealed to the Appellate Court, which reversed the judgment and rendered *433 judgment against Reilly for $5300, with interest at five per cent from April 20, 1922, amounting to $6095. Upon Reilly's petition a writ of certiorari was awarded, and the record has been certified to this court for review.
In the Appellate Court the appellant, who was plaintiff in the municipal court and is defendant in error here, assigned a number of errors, but the only assignments which are important or were considered by the Appellate Court were, error in refusing to find as a fact that the value of the bonds was $5300; in refusing to hold as a proposition of law that in the absence of competent evidence tending to show the actual value of the bonds their face value must be considered to be their actual value; in refusing to hold as a proposition of law that in the absence of evidence as to their actual value the measure of damages is an amount equal to the face value of the bonds; and in not assessing the plaintiff's damages at $5300, with interest from the time of the conversion. The plaintiff in error, who was appellee in the Appellate Court, assigned no cross-error there. He therefore cannot complain in this court of errors committed in the trial court, since this court reviews the record of the Appellate Court only as to errors properly assigned in that court upon which it had jurisdiction to pass. Where the appellee fails to assign cross-errors in the Appellate Court he will not be permitted to do so in this court on appeal from the Appellate Court. Thompson Co. v. Whitehed,
The plaintiff in error has made on the record eight assignments of error on the action of the Appellate Court and has followed these by a further assignment of ten errors on the action of the municipal court, and these latter he prays leave to present, "to be considered as in the nature of cross-errors." We cannot consider either this latter assignment of errors, which was not presented or argued to *434 the Appellate Court, or part 2 of the plaintiff in error's brief, in which these errors are argued.
The plaintiff in error insists that it was error for the Appellate Court, on reversing the judgment of the municipal court, to enter an original judgment against him for $6095, because he had a right to a jury trial, and contends that he did not waive that right. He had a right to a jury trial, and if the right was not waived it was error for the Appellate Court to render a judgment against him without such trial. (Mirich v. Forschner Contracting Co.
Although the record presents no constitutional question for our consideration it is properly here as a return to the writ of certiorari which was allowed to be issued. The trial court refused to hold propositions of law submitted by the plaintiff that prima facie the value of the bonds was their face value, and that in the absence of evidence that their actual value was less than their face value the face value must be considered their actual value and taken as the measure of damages in the case. The Appellate Court in its opinion held this to be erroneous, and it was correct in this holding. (AmericanExpress Co. v. Parsons,
The judgment of the Appellate Court is reversed and the cause remanded to that court, with directions to enter such judgment affirming or reversing the judgment of the municipal court as may seem proper to it, and if it reverses the judgment without remanding the cause, to recite in its judgment the facts found by it.
Reversed and remanded, with directions.