Dupuie v. Mccausland

• Citation: 1 Bradw. 395,1 Ill.App. 395
• Parties: EUNICE E. DUPUIE ET AL.v.JAMES McCAUSLAND, use, etc.
• Decision Date: 30 April 1878
• Court: United States Appellate Court of Illinois

1 Ill.App. 395

1 Bradw. 395

EUNICE E. DUPUIE ET AL.

v.JAMES McCAUSLAND, use, etc.

Appellate Court of Illinois, First District.

April Term, 1878.

OPINION TEXT STARTS HERE

Appeal from the Superior Court of Cook county; the Hon. John A. Jameson, Judge, presiding.

Mr. Rufus King and Mr. A. C. Story, for appellants; contending that there was a variance between the allegation and proof, and that the Court admitted improper evidence, cited Rastall v. Stratton, 1 H. Bl. 49; Woodford v. Ashley, 11 East, 508; Baynes v. Forrest, 2 Strange, 822; United States v. McNeal, 1 Gall. 387; Whitaker v. Bramson, 2 Paine, 209; Giles v. Shaw, Breese 91; Pitkin v. Yaw, 13 Ill. 251; Boynton v. Robb, 41 Ill. 349; Spangler v. Pugh, 21 Ill. 85; Ducommun v. Hysinger, 14 Ill. 249; Wickenkamp v. Wickenkamp, 77 Ill. 96.

That the damages, if any, for a breach, were unliquidated, and interest is not allowable: Bouv. Law Dic. 626; Sedgwick on Damages 430; Rev. Stat. Chap 74; Buckmaster v. Grundy, 3 Gilm. 626; Dowling v. Stewart, 3 Scam. 195; March v. Wright, 14 Ill. 248; Ill. Cent. R. R. Co. v. Cobb, 75 Ill. 148.

That the Court erred in admitting secondary evidence of the lease: 2 Phillips on Ev. 568; 1 Greenl. on Ev. § 508; 1 Starkie on Ev. 229; Kerns v. Swope, 2 Watts, 75; King v. Worthington, 73 Ill. 161.

Upon the question of the measure of damages in the suit: Kennicott v. Sherwood, 22 Ill. 190; Otto v. Jackson, 35 Ill. 349; Prickett v. Ritter, 16 Ill. 96; Hogsett v. Ellis, 17 Mich. 352; Green v. Williams, 45 Ill. 206; Cilley v. Hawkins, 48 Ill. 311; Clapp v. Noble, 9 Chicago Legal News, 168.

That the Court erred in giving an instruction which took from the jury the consideration of a material fact: Yundt v. Hartrunft, 41 Ill. 9; Hassett v. Johnson, 48 Ill. 68; Farman v. Childs, 66 Ill. 544.

The Practice Act enumerates the papers that may be taken by the jury, and an enumeration of these is an exclusion of all others: Broom's Legal Max. 651, Co. Litt. 2100; Smith v. Wise, 58 Ill. 141; Cox v. Straisser, 62 Ill. 383; Hatfield v. Cheany, 76 Ill. 488; Dempsey v. The People, 47 Ill. 323; Yoe v. The People, 49 Ill. 410; Sprauge v. Craig, 51 Ill. 288; Page v. Wheeler, 5 N. H. 91; Willis v. Forest, 2 Duer, 310.

Messrs. Barker, Buell & Barker, for appellee; argued that the variance was immaterial, and that the objection should have been made in the court below, and came too late in this court, and cited the Chicago & Alton R. R. Co. v. Morgan, 69 Ill. 492; Wilson v. King, 83 Ill. 232; Reinback v. Crabtree, 77 Ill. 182; Frazer v. Smith, 60 Ill. 145; McCarthy et al. v. Chicago, 53 Ill. 38.

As to sufficiency of the evidence offered: 1 Greenl. Ev. § 84; Starkie on Ev. 497; Lombard v. Johnson, 76 Ill. 599.

As to the measure of damages, and right to recover interest: Rev. Stat. Chap. 77, § 2; Magner v. Knowles, 67 Ill. 325; Clapp v. Noble, 9 Chicago Legal News, 168.

PLEASANTS, J.

This was an action of debt upon three appeal bonds, executed by Emma E. Dupuie as principal, and Isaac Coals as surety. The first recites that appellee recovered a judgment before a justice of the peace against said Dupuie and one Adolphus Duby, from which she appealed; and contains the usual condition that she will prosecute it with effect and pay whatever judgment the Court shall render upon the dismissal or trial thereof. The declaration avers that upon the trial of said appeal the Circuit Court rendered judgment in favor of the plaintiff, against said Dupuie and Durby, and assigns for breach that defendants have not paid said judgment.

To prove this breach plaintiff offered in evidence the record of a decree of the Circuit Court restoring a destroyed record of said court which showed a judgment against said Depuie, impleaded with Adolphus Duby--which was admitted against objection by defendants. We are of opinion that this was error. In McCarthy v. The City of Chicago, 53 Ill. 43, which was a suit upon a bond to indemnify the city, among other things, against judgments for certain specified causes, objection was made to the introduction of the record offered, for variance--that the judgment thereby shown did not appear to be the same as that described in the declaration. But the description was true so far as it went, and the Court held that it went far enough; that while the same strictness was not required in setting out a breach as in describing an instrument which was the foundation of the action, it must be reasonably specific, so as to apprise the party of what was intended to be charged; and said: “In declaring on this bond, appellee was bound to show a breach; and in doing so was compelled to describe the judgment with such reasonable accuracy as to identify and distinguish it from others. That has been done in this case, as it designated the parties, the court, the date and amount.”

In Boynton v. Robb, 41 Ills. 349, which was debt upon a bond, given on suing out an injunction to restrain the collection of a judgment, in which the judgment was described in the declaration as for $259.75, and the record offered showed one for $249.75, the court recognized the rule laid down in 1 Chitty on Pl. 295, that every allegation, even in an indictment, which is “material and not impertinent and foreign to the cause, and which cannot be rejected as surplusage must be proved as alleged,” and held the variance fatal.

The 21st Sec. of the Practice A...