Doane v. John H. Dunham.

• Decision Date: 30 September 1875
• Parties: JOHN W. DOANE et al.v.JOHN H. DUNHAM.
• Court: Illinois Supreme Court

79 Ill. 131

1875 WL 8582 (Ill.)

JOHN W. DOANE et al.

v.JOHN H. DUNHAM.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Superior Court of Cook county; the Hon. JOHN A. JAMESON, Judge, presiding.

Mr. HUGH A. WHITE, and Mr. SIDNEY SMITH, for the appellants.

Messrs. HAWES & LAWRENCE, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This case was previously before this court, and is reported in 65 Ill. 512. The facts presented by this record do not vary materially from those stated in the opinion, as reported, except there seems to be a conflict of evidence on the last trial as to the length of time the sugar was retained by appellants before it was examined, found to be different from that intended to be purchased, and the notice to take it back.

When the case was formerly before us, it was held that this was an executory contract, and after the sugar was received appellants were entitled to a reasonable time within which to make an examination, and to give notice to remove the sugar; and that whether the notice was given in apt time was a question to be determined by the jury, in the light of all the attending circumstances, and, of course, with proper instructions from the court.

Appellee having again recovered a judgment for the supposed value of the sugar, appellants again bring the record to this court, and seek a reversal, upon the grounds that the court below gave improper instructions on behalf of appellee, and refused to give proper ones asked by appellants.

An examination of those given, of which complaint is made, fails to disclose error. They inform the jury that there should have been an examination of the sugar, and a notice to take it back, within a reasonable time, considering all the circumstances. This is, no doubt, true, as a legal proposition. Even under clear and satisfactory evidence that it was the general and uniform usage for the kind of goods in question never to be examined until the wholesale merchant sold to his customer, the proposition is correct. If such was the usage, and both parties dealt with reference to it, then it would, according to such usage, be within a reasonable time to examine it when offered for sale by appellants. But the rule, no doubt, has the limit that it must be so offered in due course of trade. A person who should buy as speculation, or with the intention of holding it for sale at a distant period of time, could not claim its benefits. It could only be applied in cases falling within the general course of trade. The court below refused to instruct for appellants, that:

“If the...