28 Ill. 457 | Ill. | 1862
This record discloses nothing which shows Huston to have been an incompetent juror. He, when examined, expressed a strong dislike to Cushman, but none against Cogswell. Cushman had ceased to be a party to the record, and nothing appears indicating that he had any further interest in the suit. The individual claim of Cogswell was alone in controversy. The prejudice of a juror against a person not a party to the suit, can form no objection to the competency of the juror. The court erred in rejecting this juror.
Appellants inquired of different witnesses, how long the mill was idle, and what it was worth during that time. The appellee objected to the question being answered, which the court sustained. Was this the true rule for the measure of damages in such a case ? Where work of this character is performed, and it proves not to be according to contract, the true measure is, the difference in value between the work as performed and such as the contract requires, together with the necessary loss of its use whilst the change is being made. It is not right or proper, that the owner should permit the machinery to remain idle for an unreasonable time, and thus delay the alteration of the machinery, and then recover for loss during the whole period. If, after receiving the work, it be found to be defective, the owner may recover a sum of money sufficient to alter the defective machinery to what it should have been under the contract, with a reasonable compensation for its use for the period of time necessary to make the change. This is the damage he has sustained, and is the-true measure.
Improvements of this description being permanent and fixed, and requiring shill to test their sufficiency, their being received and being put to use is not such an acceptance as estops the party from claiming damages for their being defective. The mechanic might be released from all liability, if the owner so agreed at the time of accepting the work, or by such circumstances as showed that he was satisfied with the work. These are all questions for the consideration of the jury. This evidence was properly rejected, as, if admitted, it would have afforded too broad a basis to measure the damages.
It is also urged, that the real estate to which the machinery was attached was not described with sufficient precision in the agreement, so as to create a statutory lien. The lot is not described by numbers or by metes and bounds. Cogswell agreed “ to furnish and put up, in a workmanlike manner, in a mill belonging to the party of the second part, at Marseilles, the following articles” of machinery, which are therein specified. It does not appear that appellants had more than one mill at Marseilles, and until that is shown, there is nothing vague or uncertain in this description. Such a description in a deed would be sufficient to pass the title, and no reason is perceived for greater accuracy to enable the parties to create a mechanics’ lien.
It is further insisted, that the decree is erroneous because it authorizes a sale at the end of sixty days. This was held to be erroneous in the case of Link v. Architectural Iron Works, 24 Ill. 551. It was there said, that in no case should the sale be made at an earlier period than the end of an execution at law. In such cases the statute has not required the sale at an earlier period than ninety days after the writ shall be issued. And this, too, when the party has a year to redeem real estate when thus sold. In cases of strict foreclosure, it has been the practice in England to decree the payment of the money within six months, and even, in cases of hardship, and where there are peculiar circumstances requiring it, to extend the time for a further period of six months. We have been referred to no case or class of cases, which, directly or by analogy, require an irredeemable sale to be made at so short, a day. We are fully satisfied, that in a sale of this character, it is error to order a sale at an earlier period than ninety days from the date of the decree, and when the sum is large, and the estate is valuable beyond the amount of the incumbrance, that even six months should be given for payment before a sale is ordered. In all such cases the court is required to'5exercise a sound discretion in view of the interests of all the parties.
The decree of the court below must be reversed, and the cause remanded.
Decree reversed.
