Brant v. Gallup
| Decision Date | 31 October 1879 |
| Citation | 5 Bradw. 262,5 Ill.App. 262 |
| Parties | DANIEL R. BRANTv.BENJAMIN E. GALLUP ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding. Opinion filed March 2, 1880.
Messrs. BRANDT & HOFFMAN, for appellant; that the instruction as to what constitutes a contract was erroneous, cited Gehr v. Hagermann, 26 Ill. 438; White v. Murtland, 71 Ill. 250; Harding v. Town of Hale, 83 Ill. 501.
The instruction as to what certain acts of the plaintiff tended to prove, was erroneous, as giving undue prominence to portions of the testimony, and as usurping the province of the jury: Eames v. Blackhart, 12 Ill. 195; Sherman v. Dutch, 16 Ill. 283; Bartholomew v. Bartholomew, 18 Ill. 326; Jamison v. Graham, 59 Ill. 94; Merchants' Ins. Co. v. Paige, 60 Ill. 448; Homes v. Hale, 71 Ill. 552; Hatch v. Marsh, 71 Ill. 370; Hewett v. Johnson, 72 Ill. 513; Calef v. Thomas, 81 Ill. 478; Ogden v. Kirby, 79 Ill. 555; Frame v. Badger, 79 Ill. 441; T. W. & W. Ry. Co. v. Brooks, 81 Ill. 245; Cushman v. Cogswell, 86 Ill. 62; Martin v. Johnson, 89 Ill. 537.
Instructions should be based upon the evidence: I. & St. L. R. R. Co. v. Miller, 71 Ill. 463; Ill. Cent. R. R. Co. v. Benton, 69 Ill. 174; Badger v. Batavia Mfg. Co., 70 Ill. 302; Hewett v. Johnson, 72 Ill. 513; Andreas v. Ketcham, 77 Ill. 377; Straus v. Minzesheimer, 78 Ill. 492; Russell v. Minter, 83 Ill. 150; King v. Haley, 86 Ill. 106; Wray v. C. B. & Q. R. R. Co. 86 Ill. 424; Howe S. M. Co. v. Lyman, 88 Ill. 39.
An erroneous instruction which assumes to dispose of the entire case is not cured by others which may be correct: Roach v. The People, 77 Ill. 29; Camp Point Mfg. Co. v. Ballou, 71 Ill. 417; C. B. & Q. R. R. Co. v. Payne, 499 Ill. 49; Ill. Cent. R. R. Co. v. Maffit, 67 Ill. 431; Volk v. Roche, 70 Ill. 297; C. B. & Q. R. R. Co. v. Harwood, 80 Ill. 88.
As to rescission of contract: Banister v. Read, 1 Gilm. 92; Corney v. Newberry, 24 Ill. 203; Fox v. Kitton, 19 Ill. 519; Myers v. Gross, 59 Ill. 436; Follansbee v. Adams, 86 Ill. 13; Kappes v. White Lumber Co. 1 Bradwell, 280.
Upon the Statute of Limitations: Spilman v. Roanoke Nav. Co. 74 Nor. Car. 675; Austin v. Moore, 7 Met. 116; Amott v. Holden, 18 Adol. & E. 593; Sanders v. Cowan, 15 M. & W. 48; Blair v. Ormond, 17 Q. B. 423; Flower v. Peck, 1 Barn. & Adol. 428; Muston v. Gladwin, 6 Adol. & E. 953; Kane v. Cook, 8 Cal. 449; Penobscot R. R. Co. v. Mayo, 67 Me. 47; Campbell v. Vining, 23 Ill. 525; Thompson v. Sornberger, 78 Ill. 353; Grassly v. Adams, 71 Ill. 550; Teutonia Life Ins. Co. v. Mueller, 77 Ill. 22.
Mr. SIDNEY SMITH and Mr. GEORGE I. PADDOCK, for appellees; as to the Statute of Limitations, cited Boylston v. R. & W. Turnpike Co. 14 Vt. 311; Fish v. Folly, 6 Hill, 54; Schaffer v. Lee, 8 Barb. 412; Waterbury v. Graham, 48 Supr. Ct. 215; Carvill v. Garriques, 5 Barr. 152; Blunt v. McCormick, 3 Denio, 28e; Howell v. Young, 5 Barn. & Cres. 259; Wilcox v. Plumber, 4 Pet. 172; Mardis v. Shackleford, 4 Ala. 493; Sinclair v. Bank of So. Carolina, 2 Strobh. 344; Angell on Limitations, § 136; Bank v. Waterman, 26 Conn. 335.
If the defendants never entered upon the performance of the contract, plaintiff's remedy is an action for a total breach: Clark v. Marsylia, 1 Denio, 313; Wilson v. Martin, 1 Denio, 602; Moody v. Levenich, 4 Daly, 401; Chamberlain v. McAllister, 6 Dana, 352; Whitaker v. Sandifer, 1 Duval, 261; Goodman v. Pocock, 15 Adol. & El. 576.
Plaintiff should have procured the insurance himself on failure of the defendants so to do, and thus reduced his damages to actual loss arising from their wrongful conduct: Wilson v. Martin, 1 Denio, 602; Hamilton v. McPherson, 28 N. Y. 76; Shearman on Negligence, § 342; Addison on Torts, § 1386; Ill. Cent. R. R. Co. v. Finnigan, 21 Ill. 646; T. P. & W. R. R. Co. v. Parker, 49 Ill. 385; T. P. & W. R. R. Co. v. Pindar, 53 Ill. 447; Sherman v. Iron Works, 2 Allen, 527.
In support of instructions given for defendants: Duncan v. Niles, 32 Ill. 532; Martin v. The People, 13 Ill. 341; Heartt v. Rhodes, 66 Ill. 351.
Where substantial justice has been done, the verdict will not be disturbed: Leigh v. Hodges, 3 Scam. 15; Smith v. Schultz. 1 Scam. 490; Gillett v. Sweat, 1 Gilm. 475; Newkirk v. Cone, 18 Ill. 449; Young v. Silkwood, 11 Ill. 36; Greenup v. Stoker, 3 Gilm. 202.
This was an action on the case, brought by Daniel R. Brant against Benjamin E. Gallup and Francis B. Peabody for negligence in failing to keep a certain building belonging to the plaintiff, known as Dearborn Theatre, insured against fire according to the terms of a certain alleged agreement in that behalf between the plaintiff and the defendants. The declaration alleges, in substance, that on the first day of April, 1869, the defendants, under the firm name of Gallup & Peabody, were engaged in the business of loan agents in the city of Chicago; that on that day the defendants had procured for the plaintiff from one Jonathan Bourne, Jr., a loan of $45,000 for five years, and the plaintiff had executed to said Bourne a mortgage upon said Dearborn Theatre, and other real estate to secure said loan; that said mortgage contained a covenant on the part of the mortgagee to keep the buildings on the mortgaged premises fully insured against loss or damage by fire up to the amount of their fair insurance value, in good, responsible insurance companies, the selection of such companies to be left to the option of said Bourne; the insurance to be made payable, in case of loss, to Bourne, and the policies to be delivered to him.
That the defendants retained and received out of said sum of $45,000 the sum of $2,500 as their commissions; that in consideration of said commissions they at the same time entered into a verbal agreement with the plaintiff to keep said theater building insured to its fair insurable value, in good and responsible insurance companies, during the life of the mortgage, said insurable value being $150,000, and that the plaintiff was to pay the premiums therefor whenever requested so to do by the defendants; it thereby became the duty of the defendants to use all reasonable care and diligence in procuring said building to be so insured during the life of the mortgage, and to request the plaintiff from time to time to furnish them such sums of money as were necessary to pay for the insurance; that the defendants, not regarding their duty, did not use diligence in procuring said building to be insured as aforesaid, and did not apply to the plaintiff for money to pay the premiums therefor; that on account of said neglect of the defendants, said building, on the 9th of October, 1871, was not insured in good and responsible companies to its full value, or any part thereof; and that at the date last aforesaid the building was destroyed by fire, whereby the plaintiff lost its insurable value, viz., $150,000.
The suit was commenced on the 6th day of October, 1876. To the declaration the defendants plead not guilty and the Statute of Limitations. On the trial before the court and a jury, a verdict was found for the defendants, and the court, after overruling the plaintiff's motion for a new trial, gave judgment against him for costs, from which judgment he has prosecuted this appeal. The questions presented by the appellant for our consideration relate principally to the instructions to the jury.
Whether the contract between the plaintiff and the defendants set out in the declaration, by which the defendants undertook to keep the building in question insured for the plaintiff, was ever in fact made, was a question upon which the evidence was conflicting. The plaintiff, and some other witnesses who were present at the time the loan was consummated, testify to such an agreement, or to conversations between the parties tending to establish its existence, and there is some evidence of subsequent admissions or recognitions of the agreement by the defendants. Both the making of the contract and all subsequent admissions in relation thereto, are positively denied by the testimony of Peabody, the one of the defendants who was personally cognizant of the transaction, and his testimony is corroborated by the testimony of other witnesses, and by various facts and circumstances in proof. The third instruction given to the jury at the instance of the defendants was as follows:
It is doubtless the law, that in order to the formation of a contract, there must be a meeting of the minds of the parties. The same identical proposition must be assented to by both. Where the contract is not reduced to writing, if it appears that the language used, or the terms proposed, are understood differently by the parties, there is no such meeting of their minds as will constitute a contract between them. While this is so it is also true that, in the absence of evidence to the contrary, it will be presumed each party uses language in its ordinary sense, and that it is so understood by the other party. Where a proposition is made and assented to, the law raises the inference that both understand it alike; and if such is not the fact, the burden of showing a misunderstanding will be upon the party who asserts it.
The instruction, however, throws upon the...
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