Dady v. Condit

• Decision Date: 20 December 1900
• Citation: 188 Ill. 234,58 N.E. 900
• Parties: DADY v. CONDIT.
• Court: Illinois Supreme Court

188 Ill. 234

58 N.E. 900

DADY

v.CONDIT.

Supreme Court of Illinois.

Dec. 20, 1900.

Appeal from appellate court, Second district.

Action by J. M. Condit against Robert Dady. From a judgment of the circuit court in favor of plaintiff, affirmed by the appellate court (87 Ill. App. 250), defendant appeals. Reversed.George W. Brown and Cooke & Upton, for appellant.

Hoyne, O'Connor & Hoyne (John L. Griffith and Clark & Clark, of counsel), for appellee.

WILKIN, J.

This is an appeal from a judgment of the court below affirming a judgment of the circuit court of Lake county in favor of appellee against appellant for $12,000. The action is assumpsit for the breach of a contract to convey real estate. An agreement in writing between the parties, dated January 14, 1891, by which appellant agreed to convey to appellee on August 1, 1891, upon certain terms and conditions to be performed by the latter, 160 acres of farm land near the city of Waukegan, at $150 per acre, and an offer to comply on the part of the plaintiff, and the refusal of the defendant to make the conveyance, are matters properly set up and alleged in the declaration. Incidental to this action, it may be stated that on the 10th of August, 1891, Condit, the appellee, began a similar suit in the circuit court, pending which Dady, the appellant, filed his bill in equity to enjoin the further prosecution of that action at law. The history of the litigation under that bill, and the final result of it, appear in 163 Ill. 511, 45 N. E. 224. After the dismissal of that bill, Condit dismissed his suit at law, and on November 22, 1897, brought this action. The only plea is the general issue, sworn to. Two trials were had in the circuit court; the first resulting in a verdict of $4,920 for the plaintiff, which, on his motion, was set aside, and a new trial awarded. On the second-being the one upon which the judgment appealed from to the appellate court was entered-the verdict of the jury was for $15,000; but the plaintiff entered a remittitur of $3,000, and took judgment for the sum of $12,000, with costs of suit.

The only contested question before the last jury was as to the damages. It is asserted in the argument of counsel for appellant that, upon the declaration and plea, he was not liable even for nominal damages; but the claim is not seriously insisted upon, as it could not be under the proofs. The validity of the agreement had already been determined by this court, and the defendant's failure and refusal to perform it was clearly established by the evidence, and not denied by him. These facts were sufficient to establish the plaintiff's right to mere nominal damages. Whether he was entitled to more (that is, to substantial damages) was the real question before the jury, and one upon which the evidence was in irreconcilable conflict. There being no claim on the part of the defendant of want of title, or other disability on his part to make the conveyance, the measure of damages was the increased value, if any, of the premises at the time of the breach (August 1, 1891) above the contract price. In other words, the general rule of ‘actual compensation for actual injury’ is applicable. Unless, therefore, the plaintiff below established by the evidence that the property was of greater value on August 1, 1891, than $150 per acre, the verdict of the jury should have been for nominal damages only. The evidence introduced by plaintiff as to the value of the premises on that date consisted principally of testimony as to sales of other similar lands in the same locality. He also showed by two or three real-estate dealers that in their opinion the land was on that date of the value of about $300 per acre for the purpose of subdivision. It appears from all the evidence that as farm lands the tract was at no time worth in the market more than $50 or $60 per acre, and that whatever value it had over and above that price resulted from the prospective and final location of the Washburn & Moen Manufacturing Company at Waukegan, and the hope that thereby such property would be salable in subdivisions. That such expectation or hope has not been realized is also clearly established by the evidence, the proof being clear that at the time of the trial the market value of the land in question was not to exceed one-half of the contract price of $150 per acre. Several witnesses testified on behalf of the defendant that the market value of the tract on August 1, 1891, was much less than the contract price, and that it was not suitable for subdivision or other use than as farm lands, fixing its value at from $40 to $65 per acre. What is here said as to the evidence, is, of course, only important in this court as bearing upon the assignment of errors of law; it being conceded that there is evidence in the record tending to support the verdict, and that the judgment of the appellate court is final as to the facts, unless it shall appear that there was substantial error in the rulings of the court on the instructions, or that improper evidence was admitted or proper evidence excluded upon the trial.

The contention that the circuit court erred in the exclusion of testimony is mainly based upon the refusal to allow counsel to cross-examine certain witnesses testifying to the sales of other lands, as to the terms and conditions upon which those sales were made. While we think the court unduly limited the cross-examination in that regard, we are not prepared to say that the error was sufficiently harmful to justify a reversal of the judgment below on that ground.

The more serious contention, and the one, in our judgment, of substantial merit, is that the jury was misdirected by the instructions, and that the court erred in the refusal of at least one of those asked by the defendant. As to those given, the exception was to ‘each and all of said instructions,’ and, as to those refused, ‘refusing to give the same, and each of them.’ Counsel for appellee contend that this language must be treated as general...