Devine v. Edwards

• Decision Date: 30 September 1877
• Parties: MARK W. DEVINEv.HENRY C. EDWARDS.
• Court: Illinois Supreme Court

87 Ill. 177

1877 WL 9831 (Ill.)

MARK W. DEVINE

v.HENRY C. EDWARDS.

Supreme Court of Illinois.

September Term, 1877.

APPEAL from the Circuit Court of Du Page county; the Hon. HIRAM H. CODY, Judge, presiding.

Messrs. E. H. & N. E. GARY, for the appellant.

Messrs. BOTSFORD & BARRY, for the appellee.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

This was an action brought by Edwards against Devine, to recover the price of milk which had, before that time, been sold to appellant, and from time to time delivered.

Defendant, in the circuit court, pleaded the general issue and pleas of set-off, and on the trial offered evidence tending to prove that less milk had been actually delivered than was charged for, and less than he supposed at the time of receiving and paying for the same.

Appellant, it seems, was a dealer in milk in the city of Chicago, and plaintiff, (with his brother, now deceased,) for a series of months, from time to time, shipped from the country milk in cans, supposed to contain eight gallons each. Upon that hypothesis the account of the vendor was rendered from time to time, and payment made by the vendee for all milk received up to the 1st of March, 1875, and for a part of the milk delivered on and after that day the appellant refused to pay, claiming a credit for a large amount of money on account of money over-paid prior to that date, as he claims, from time to time, by mistake, in supposing that the cans each contained eight gallons, when, in fact, as he alleges, a part of them were short and contained less than eight gallons.

The testimony is voluminous and contradictory, and it seems to us that the weight of the evidence found in the record is in favor of the position of appellant. The verdict was for appellee, for the sum of $989.10, being very near the full amount claimed by him. After overruling a motion for a new trial, judgment was rendered against appellant upon the verdict.

Many points are presented by appellant as grounds for reversing this judgment. It is not necessary that we should consider more than one.

The court, among other things, instructed the jury, at the request of appellee, “that if they believe, from the evidence, that before or during the time he received or was receiving the milk of the plaintiff, for which he now claims his set-off for shortage, the defendant * * * had such notice thereof, that by the exercise of ordinary prudence and diligence he would have known that plaintiff's...