Edgmon v. Ashelby
| Decision Date | 31 January 1875 |
| Citation | 76 Ill. 161,1875 WL 8158 |
| Parties | ALEXANDER EDGMONv.MATTHEW ASHELBY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.
This was an action of assumpsit, brought by the appellee against the appellant.
Messrs. MORRISON, WHITLOCK & LIPPINCOTT, for the appellant.
Messrs. KETCHAM & TAYLOR, and Mr. E. P. KIRBY, for the appellee.
This was assumpsit, in the Morgan circuit court, counting on a due bill and on an account stated, a bill of particulars accompanying the declaration, brought to the May term, 1872, by Matthew Ashelby, against Alexander Edgmon. The cause was continued from term to term until the November term, 1873, at which term the defendant pleaded non-assumpsit, and set-off, accompanying the same with a bill of particulars. The cause was then continued to May term, 1874, when a trial was had by a jury, and a verdict rendered for the plaintiff for three hundred and five dollars and eighty cents. A motion for a new trial was entered by the defendant, which, on a remittitur being entered for fifty-eight dollars and fifty cents, was denied by the court, and judgment rendered for two hundred and forty-eight dollars and fifty cents. To reverse this judgment the defendant appeals, and assigns as error the refusal of the court to grant a new trial, insisting that the verdict is against the preponderance of the testimony, and instructions for plaintiff wrong, and refusing instructions asked by defendant.
We have fully considered all the points made on this appeal, and are satisfied none of them have weight.
The due bill was in these words, to which no objection was made: “Due Ashelby, on settlement, $96, April 16, 1869.” This note, under the statute, bore interest from date. The plaintiff's account, attached, evidenced various items, and on trial a question was asked in regard to the sale of certain hogs by plaintiff to defendant, which was not specified in the bill of particulars, and on objection made by defendant to any testimony on that point, the court, on motion of plaintiff, permitted him to amend his bill of particulars, which was done, defendant not objecting, by adding the item of a sale of twelve hogs at $180; cash, $30; 5 cords wood, $25; interest, $100.
Defendant's bill of particulars, under his plea of set-off, was composed entirely--except an item of four and a half cords wood at $4,...
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