Mulliner v. Bronson

Citation2 N.E. 671,114 Ill. 510
PartiesMULLINER v. BRONSON.
Decision Date23 September 1885
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Error to appellate court, Third district.

A. E. White

and C. A. Babcock, for plaintiff.

Geo. M. Janes, for defendant.

CRAIG, J.

This was an action of assumpsit brought by Charles M. Bronson, in the Adams circuit court, against Edward S. Mulliner, to recover a balance claimed to be due for a certain quantity of lumber which plaintiff had sold and delivered the defendant. The declaration contained the common counts, and on a trial before a jury the plaintiff recovered a judgment for $600, which on appeal was affirmed in the appellate court.

It appears from the evidence that on the twenty-eighth day of September, 1881, Bronson and Mulliner entered into a contract in writing under which Bronson agreed to move his saw-mill and set it up in the sycamore timber growing in land belonging to J. R. Crent, five miles north-west of Menden, and saw for Mulliner 220,000 feet of lumber. The contract contained this provision: ‘Mulliner to measure said lumber after it is delivered dry at his yard in Quincy, Illinois, and to measure such only as is absolutely clear, and will work into tobacco boxes.’ The lumber was sawed and delivered, but it was contended by the defendant that a portion of it was not absolutely clear, and he was not bound to measure and pay for this portion; while, on the other hand, plaintiff claimed that the quality of the lumber complied with the contract. On the trial the court ruled that the condition of the lumber before it was shipped was immaterial; that the evidence must show the lumber, after it was delivered at defendant's yard in Quincy, complied with the contract. But the court also admitted evidence of witnesses who saw the lumber after it was sawed, and while it was being shipped, as tending to establish the quality of the lumber delivered, and the admission of this evidence is relied upon as error.

While it is true under the contract that the quality of the lumber was to be determined in the measurement at defendant's yard after it had been delivered, still where witnesses saw the lumber after it was sawed in the timber, and saw it when it was being shipped, such evidence was competent, tending to prove the quality of the lumber after it had reached the possession of defendants, and we think such evidence was properly admitted. If the lumber was clear after it was sawed and placed on wagons or cars for shipment to defendant, it could not become different or other than clear lumber on its arrival. The lumber was hauled in wagons some five miles from the mill to a station on the railroad, and then shipped in cars. The men who loaded the lumber in wagons and unloaded into the cars would, doubtless, form an opinion as to its quality, and the facts thus obtained were competent evidence tending to show the quality of the lumber when it was to be measured in defendant's yard. If the lumber was damaged by shipment, that might readily be proven.

It is also contended that on the trial the presiding judge made remarks and expressions of opinion that tended to infiuence the jury in making up...

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4 cases
  • Kersten v. Great Northern Railway Company
    • United States
    • United States State Supreme Court of North Dakota
    • May 20, 1914
    ...... made and taken. People v. Abbott, 101 Cal. 645, 36. P. 129; Hall v. First Nat. Bank, 133 Ill. 243, 24. N.E. 546; Mulliner v. Bronson, 114 Ill. 510, 2 N.E. 671; Vass v. Waukesha, 90 Wis. 337, 63 N.E. 280;. Osborn v. Ratliff, 53 Iowa 748, 5 N.W. 778;. O'Callaghan ......
  • State v. Pagels
    • United States
    • United States State Supreme Court of Missouri
    • June 20, 1887
    ......Bauduy, and his remarks at the time were erroneous. Rickerson v. State, 1 S.E. 178; Cronkhite v. Dickerson, 51 Mich. 177; Mullinur v. Bronson, . 114 Ill. 510, 514; Lycan v. People, 107 Ill. 423,. 428. (8) The court should have checked and rebuked the. circuit attorney for his remarks ......
  • Lanquist v. City of Chicago
    • United States
    • Supreme Court of Illinois
    • December 16, 1902
    ......In Mulliner v. Bronson, 114 Ill. 510, 2 N. E. 671, we said (page 514, 114 Ill., and page 673, 2 N. E.): ‘The remarks which were made by the circuit court were ......
  • Catlett v. Dougherty
    • United States
    • Supreme Court of Illinois
    • September 23, 1885

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