Durham v. Goodwin
| Decision Date | 30 September 1870 |
| Parties | DANIEL DURHAMv.BENJAMIN GOODWIN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Kankakee county; the Hon. CHARLES H. WOOD, Judge, presiding.
The opinion states the case.
Mr. C. A. LAKE, for the appellant.
Mr. W. H. RICHARDSON, for the appellee.
This was an action of trespass, brought by the appellee against the appellant, in the circuit court of Kankakee county, to the November term, A. D. 1869. The plaintiff below complains that the defendant's stock broke and entered his close and destroyed his corn, wheat and oats.
A number of errors are assigned on the record, the most important of which are, that the evidence does not sustain the verdict, and that the court erred in giving the instructions asked by the plaintiff below.
As this case is to be reversed, on the instructions, we have not considered the evidence to see whether it fully sustains the verdict, and inasmuch as the cause is to be tried again, we forbear to make any comments on the evidence.
At the instance of the plaintiff, the court gave the following instructions:
“If the jury believe, from the evidence, that the plaintiff's farm is surrounded by a good and sufficient fence, such as would turn ordinary horses and mules, and if you believe, from the evidence, that defendant's mules and gray mare were breachy and tore down and broke down such fence, and thereby went in and let others go in, then, in that case, the law is for the plaintiff, and he is entitled to recover for all damages so occasioned.
The court instructs the jury, that if you believe, from the evidence, that plaintiff's farm was, in the fall of 1865 and winter and spring of 1866, in winter and spring of 1867, surrounded by a good and sufficient fence, and if you further believe, from the evidence, that defendant's horses and mules, and others that run together in a drove on defendant's farm, damaged the plaintiff's corn and oats; and if you further believe, from the evidence, that defendant's mules were breachy and broke down the plaintiff's fences, they being at that time sufficient to turn ordinary stock, and let in the gang of other horses so running together and belonging to defendant, then, in that case, the law is for the plaintiff, and he is entitled to recover whatever damages he has proved occasioned thereby.”
The first of the above instructions, we think, is erroneous in stating to the jury that the defendant below was liable to the plaintiff for all damage occasioned, if defendant's stock were breachy and broke down plaintiff's fence “and thereby went in and let others go in.” It...
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