Hayes v. Moynihan
| Decision Date | 30 September 1869 |
| Citation | 52 Ill. 423,1869 WL 5465 |
| Parties | SAMUEL S. HAYESv.JOHANNA MOYNIHAN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Chicago; the Hon. JOSEPH E. GARY, Chief Justice, presiding.
The opinion sufficiently states the case.
Mr. FRANCIS ADAMS and Mr. M. F. TULEY, for the appellant.
Mr. E. VAN BUREN, for the appellee.
This was an action of assumpsit, brought by appellee, in the superior court of Chicago, against appellant. The declaration contains but a special count, which avers that, in April, 1868, appellee was the owner of a lot in the city of Chicago, describing it, on which there was a brick dwelling house, owned and occupied by appellee, which rested on a foundation built six feet below the surface of the ground; that appellant, being desirous of erecting store houses on adjoining lots and abutting appellee's house, and it being necessary to make excavations for the purpose, and being desirous of sinking such excavations below and under appellee's foundation wall, appellant, in consideration that appellee would consent thereto, and would not institute legal proceedings to prevent his making such excavations, and would permit him to place dimension stone under the foundation wall of appellee's house, agreed that he would settle with her, and pay all damages she had or might sustain thereby, and by reason of building his foundation walls great injury had ensued. To the declaration the general issue was filed.
At the January term, 1869, a trial was had before the court and a jury, resulting in a verdict in favor of appellee, for $2230. A motion for a new trial was entered, but overruled by the court, and judgment rendered on the verdict. To reverse that judgment, the record is brought to this court by appeal, and errors are assigned.
It is urged that there is a variance between the declaration and the evidence; that it is averred appellant promised to pay whatever damages appellee might sustain by the construction of his foundation, while it is contended he only promised to pay whatever damages should be sustained, and for which he would be legally liable. The testimony given by appellee fully sustains the declaration, but that of appellant is, that he was only to pay for such damages as he might cause, and for which he would be legally liable. The evidence of Asay is not definite, and when considered by itself, leaves it doubtful; but he says appellee would be more apt to remember it correctly than he would, as she had an immediate interest, and had gone to his office to procure an injunction to stop appellant from proceeding with the excavation for the cellar. As the result of that interview, appellee did not proceed with legal proceedings, and soon after gave her consent that the work might proceed. We infer, whatever may have been appellant's understanding, that appellee understood the agreement as she details it. She is more positive in giving her evidence than appellant. She seems to be more clear, and enters more into details than he does, as to what was said and done. That there is a conflict, is manifest, but it is of that character that both seem to be convinced of the truth of their own version of the arrangement. When it is remembered that appe...
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Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp.
...damages. The rule in Illinois is that in an action for breach of contract there can be no claim for punitive damages. Hayes v. Moynihan, (1869) 52 Ill. 423, 426.' It is significant that the court in Ash did not find that the rule, applied in some jurisdictions, that punitive damages are per......
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Hutchinson v. Brotman-Sherman Theatres, Inc.
...party suing for breach of contract is entitled only to the benefit of his bargain, namely, compensatory damages. (Hayes v. Moynihan (1869), 52 Ill. 423, 426; Ledingham v. Blue Cross Plan for Hospital Care (1975), 29 Ill.App.3d 339, 350, 330 N.E.2d 540, rev'd on other grounds (1976), 64 Ill.......
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Morrow v. L.A. Goldschmidt Associates, Inc.
...recoverable for breach of contract. (Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 187, 23 Ill.Dec. 559, 384 N.E.2d 353; Hayes v. Moynihan (1869), 52 Ill. 423, 426; Bank of Lincolnwood v. Comdisco, Inc. (1982), 111 Ill.App.3d 822, 829, 67 Ill.Dec. 421, 444 N.E.2d 657; 11 Williston, Contra......
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Strader v. Union Hall, Inc., 75 C 3524.
...Thus, the court noted that although punitive damages generally may not be awarded in an action for breach of contract, Hayes v. Moynihan, 52 Ill. 423, 425, 426 (1869); Ash v. Barrett, 1 Ill.App.3d 414, 274 N.E.2d 149, 152 (1st Dist. 1971), such damages may be awarded where the breach of thi......