Hovey v. Robert Thompson & Co.

• Decision Date: 30 April 1865
• Citation: 37 Ill. 538,1865 WL 2853
• Court: Illinois Supreme Court
• Parties: CHARLES E. HOVEYv.ROBERT THOMPSON & Co.

37 Ill. 538

1865 WL 2853 (Ill.)

CHARLES E. HOVEY

v.ROBERT THOMPSON & Co.

Supreme Court of Illinois.

April Term, 1865.

WRIT OF ERROR to the Circuit Court of McLean county; Hon. CHARLES EMERSON, J.

Robert Thompson et al., partners, sued Charles E. Hovey, in assumpsit, for goods sold and delivered.

The goods sued for were delivered to one Soper, but, as plaintiffs allege, were sold and credited to defendant through Soper, as agent. It appears that the pass books were kept between Soper and plaintiffs, the only evidence connecting defendant with the pass books being that in the settlement between defendant and Soper the books were used by the parties as evidence of the amount of goods furnished.

Upon the closing of the testimony the court instructed the jury, for the plaintiffs, as follows:

1. The court instructs the jury that they add up the pass books to ascertain the amount thereof.

2. If the jury believe, from the evidence, that the goods in question were sold on the credit of C. E. Hovey, by his arrangement, they will find for the plaintiffs.

To the giving of which, the defendant excepted.

The jury, upon retiring to consider of their verdict, were allowed to take with them the pass books and certain bills of lading which had been given in evidence, to which the defendant objected. They returned a verdict for the plaintiffs for $759.77. A new trial was refused, and judgment was entered upon the verdict.

The defendant thereupon sued out this writ of error.

W. H. HATCH, for the plaintiff in error.

E. M. PRINCE, for the defendants in error. Mr. CHIEF JUSTICE WALKER delivered the opinion of the court:

The giving of the first and second instructions for plaintiff below is assigned as error. They are these--1st, The court instructs the jury that they add up the pass books to ascertain the amount thereof; and 2d, if the jury believe, from the evidence, that the goods in question were sold on the credit of C. E. Hovey, by his arrangement, they will find for the plaintiffs. These instructions, we think, were calculated to mislead the jury. The first only requires them to add up the pass books to find the amount of goods charged upon them. The jury might have understood the instruction as directing them that the books were of that character of proof as precluding all other questions than the amount when footed up as extended by the person making the entry, whilst, if the proof satisfied them that the goods were obtained on the credit of Hovey, still it was their right to ascertain whether the price was correctly carried into these columns. And it was also for them to ascertain from the evidence, even if the goods were sold on the credit of plaintiff in error, whether any portion of them had been paid for by a previous settlement or otherwise, whilst this instruction seems, by implication at least, to inform the jury that they only had to ascertain the amount as charged and to allow it against plaintiff in error. This instruction should have been modified before it was given.

The second should have been modified by informing the jury that if they were purchased on the credit of plaintiff in error, and had not been paid for, then they should find for defendant in error. The goods may...