Addems v. Suver

• Citation: 89 Ill. 482,1878 WL 10064
• Parties: EPHRAIM ADDEMSv.NANCY SUVER.
• Decision Date: 30 September 1878
• Court: Illinois Supreme Court

89 Ill. 482

1878 WL 10064 (Ill.)

EPHRAIM ADDEMS

v.NANCY SUVER.

Supreme Court of Illinois.

September Term, 1878.

APPEAL from the Circuit Court of Warren county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. STEWART, PHELPS & GRIER, for the appellant.

Mr. J. M. KIRKPATRICK, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

It is insisted, the court below erred in sustaining a demurrer to defendant's pleas of set-off. They set up the facts that appellant had a large number of cattle, and that he agreed to pay appellee one dollar and fifty cents per head for each month she would pasture them; that she agreed to build a fence in ten days, to enable the cattle to go to and from water, as they might choose, but that she failed to build the fence, and the cattle became injured for the want of water, and seven head of them died and the others were injured, whereby appellant suffered damage to an amount larger than appellee's claim, and in one plea he offered to set off the amount of appellee's claim, and in the other to set off that amount, and prayed judgment over for the balance.

In the case of Babcock v. Trice, 18 Ill. 420, it was held, that damages growing out of the contract sued on, may be recouped by the defendant under the general issue. The same rule was announced in Murray v. Carlin, 67 Ill. 286, and in Cooke v. Preble, 80 Ill. 381; and the court below, and appellant's counsel, must have been aware of these decisions, as proof of the facts averred in the pleas was heard on the trial--in fact, that seems to have constituted the whole contest in the case. Appellant had every opportunity to make the defense set up in the pleas, and he availed himself of the privilege to its full extent. It has been repeatedly held by this court, that when matter is specially pleaded, and the plea held bad on demurrer, but the evidence is let in and the defense made under the general issne, the defendant is not injured by wrongfully sustaining a demurrer to the plea, and a reversal will not be had.

In the case of Cooke v. Preble, supra, a plea similar to the pleas under consideration was stricken from the files, but the court admitted evidence under the general issue, the same as though the plea had been in the record, and it was held, that notwithstanding the irregularity and error, the judgment would not be reversed. This error is not well assigned.

It is next urged, that the court below erred in refusing to grant a new trial, because all the instructions asked in the case had been lost before the motion for a new trial was overruled. We are unable to comprehend how that should render a new trial necessary. We presume no one could conceive the idea that...