Legnard v. Rhoades

• Decision Date: 15 May 1895
• Citation: 156 Ill. 431,40 N.E. 964
• Parties: LEGNARD v. RHOADES et al.
• Court: Illinois Supreme Court

156 Ill. 431

40 N.E. 964

LEGNARD

v.RHOADES et al.¹

Supreme Court of Illinois.

May 15, 1895.

Error to appellate court, First district.

Assumpsit by Charles B. Rhoades and Orville H. Whittlesey against John B. Legnard. Plaintiffs obtained judgment, which was affirmed by the appellate court. 51 Ill. App. 477. Defendant brings error. Reversed.E. K. Smith and W. E. Freer, for plaintiff in error.

E. Whittlesey and J. C. McShane, for defendants in error.

CRAIG, J.

This was an action of assumpsit brought by Charles B. Rhoades and Orville H. Whittlesey against John B. Legnard to recover money alleged to be due on a contract executed by the parties on the 20th day of February, 1890, which was in substance as follows: ‘Rhoades and Whittlesey are to make as many brick at the yard of Legnard in Chicago as can be made during the season of 1890. They are to dig the clay, make and burn the brick, and load them on Legnard's wagons, and to furnish all necessary fuel oil, etc., and keep all machinery in good repair, and turn the yard and machinery back; at the end of the season or expiration of the contract, for any cause, in good condition as received, ordinary wear excepted; Legnard to pay them for all brick of good quality delivered on his wagons $2.75 per M., to be paid as follows. The fuel bills and labor every two weeks for the actual time men have worked according to time books, provided the amount shown on the books is due said Rhoades and Whittlesey at the time. The money so advanced for fuel, labor, etc., shall be deducted from the amount that may be due Rhoades and Whittlesey at the time of settlement. At any time when the yard is not run with due diligence, or when brick made are not satisfactory to Legnard, he may cancel this contract without further notice, and make settlement for brick made, and take possession. [Signed] O. H. Whittlesey, J. B. Legnard, C. B. Rhoades.’ Upon the execution of the contract, Rhoades and Whittlesey went into possession of Legnard's brick yard, and commenced at once the manufacture of bricks. They continued the work, making and delivering brick under the contract, until July 13, 1890, when the defendant, Legnard, stopped the work and took possession of the yard. At the time this occurred the jury found that the plaintiffs were not in default, but were ready and willing and able to go on and perform the contract. They also found that the defendant was not able and willing to perform his part of the contract during the brickmaking season of 1890. The declaration contained the common counts and several special counts, and on a trial the jury returned a verdict in favor of the plaintiffs for $5,000; $2,200 was remitted by plaintiffs, and judgment entered for $2,800. On appeal to the appellate court, this judgment was affirmed, and the defendant has appealed to this court.

Upon an examination of the record, it appears that no instructions were asked or given in behalf of the plaintiffs, and all the instructions prepared and asked by the defendant were given. There was therefore no error in the decision of the court on instructions. It is, however, claimed that the evidence was not sufficient to warrant the judgment, and the appellate court refused to review the evidence; and hence it is insisted that this court should review the facts, and reverse, on the ground of the insufficiency of the evidence, or reverse the judgment of the appellate court, and remand to that court, with directions to review the evidence and pass upon the facts. In regard to the first position of counsel, that this court should review the facts, it is sufficient to say that under the statute, as has been held by numerous decisions, this court does not review and pass upon controverted questions of fact on appeals from and writs of error to the appellate court. As to the second position, that the judgment should be reversed, and the cause remanded to the appellate court, with directions to review the facts, upon an examination...