4 Ill. App. 228 | Ill. App. Ct. | 1879
This cause was tried in the Grundy Co. Circuit Court resulting in verdict and judgment for appellee for $761.85. The declaration contained the common counts for work and labor. It is claimed that appellants and George P. Adams were partners in business, carrying on a stone-quarry at Anx Sable. That appellee was hired to conduct their business for the season, at one hundred dollars per month. He commenced March 22nd, 1873, and quit October 15, 1873. The season ended in Uov. ’73. Appellee had been paid on account $125. There is no evidence showing that appellee was discharged, but that he quit on his own motion, or by mutual consent. If appellee quit work without being discharged, or by mutual consent, he could only recover at the rate of $100 per month for the time he was actually employed. Again, if he sought to recover for his full contract price for the whole time, for the cause that he was discharged, he should declare specially on the contract setting up a breach. According to the evidence, if the appellee was entitled to recover at all, a question which we refrain from deciding, as the case may be passed upon by another jury, he was entitled onty to recover after deducting credit,'the sum of five hundred fifty-one and 67.100 dollars wages, for the actual time employed.
The question of the right by appellee to recover interest on account of vexatious delay, was not presented to the jury or passed upon by them. We see nothing in the evidence containing the elements of “vexatious delay.” It appears that appellant "was making a most vigorous and honest defense, and delay was occasioned because he refused to pay the claim, or because he wanted time to get ready for trial.
But even counting interest, the verdict would be too large.
The question raised on the plea in abatement by appellant has been considered. It appears that appellant after his demurrer to appellee’s replication to his plea in abatement was overruled, pleaded the general issue, and plea denying the joint liability sworn to, and went to trial on the merits of the case on those issues. This was a waiver on his part of his plea. Lindsay v. Stout, 59 Ill. 491.
Because the damages assessed by the jury were excessive, the judgment of the court below is reversed and the cause remanded.
Reversed and remanded.
