Marshall v. Gridley

• Court: Illinois Supreme Court
• Writing for the Court: WALKER
• Citation: Marshall v. Gridley, 46 Ill. 247, 1867 WL 5362 (Ill. 1867)
• Decision Date: 30 September 1867
• Parties: SAMUEL MARSHALLv.JOHN GRIDLEY.

46 Ill. 247

1867 WL 5362 (Ill.)

SAMUEL MARSHALL

v.JOHN GRIDLEY.

Supreme Court of Illinois.

September Term, 1867.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. SABIN D. PUTERBAUGH, Judge, presiding.

The facts are sufficiently stated in the opinion.

Mr. D. MCCULLOCH, for the appellant.

Messrs. O'BRIEN & WELLS, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by John Gridley, in the Peoria Circuit Court, against Samuel Marshall, to recover damages for a breach of contract to deliver from ninety to one hundred hogs. The declaration contained a special and the usual common counts. Defendant pleaded the general issue and seven special pleas. The second plea was to the first count, and averred that defendant was ready, willing and offered to deliver the hogs mentioned in the contract, at the specified time, upon plaintiff paying the contract price, which was demanded and refused. The third plea is to the same count and avers, that he was ready, willing and offered to deliver the hogs according to the contract, upon plaintiff paying therefor, which he refused to do on demand. The fourth plea was to the second count, and the same as the second plea. The fifth was to that count, and the same as the third. The sixth and seventh pleas are to the third count, and the same as the second and third pleas. The eighth plea is to the fourth count, and avers that defendant was indebted to plaintiff for money had and received; that on the 21st of August, 1865, defendant entered into a contract to deliver plaintiff from ninety to one hundred hogs, on the first day of January, 1866, at $8 per 100 pounds, to be paid on delivery, and he paid defendant $100 on the contract; plaintiff to have the privilege of receiving one car load on the first of December; that on the day specified, defendant was ready and willing, and offered to deliver the hogs according to the terms of the contract, but plaintiff refused to receive them, and that the $100 was all the money received of plaintiff. To the first plea this similiter was added. To the second plea the replication traverses the offer to deliver, and the refusal to receive, the hogs. Similar replications were filed to all of the other pleas except the eighth. It averred that one thousand dollars was received. Issue was joined on all of the replications.

A trial was had by the court and a jury. A verdict was returned for plaintiff, and the damages were assessed at $200. Defendant entered a motion for a new trial, which was overruled, and the court rendered judgment on the verdict. The case is brought to this court on appeal, and the defendant assigns various errors for the reversal of the judgment.

On the trial below, appellee read in evidence this agreement:

“AUGUST 21, 1865.

I have this day bought of Sam. Marshall for John Gridley, from 90 to 100 hogs, to be taken the first of January, at eight dollars per hundred, live weight. I am to take one car the first of December if I like--which he has received one hundred dollars.

S. MARSHALL,

J. C. DARNELL.”

The whole controversy in this case grows out of the meaning of this contract, and the proper mode by which it is to be interpreted. On the trial below, the court permitted appellee to prove that the people of the neighborhood were in the habit of delivering their hogs, when sold on foot, at Elmwood station, two and a half miles distant from appellant's; and that appellee had, for several years previously, bought appellant's hogs, and that they had been delivered at Elmwood; that appellant was at that place on the day fixed for the delivery, ready and willing to receive and pay for them.

There are few rules of law, more uniformly or firmly established, than that verbal evidence is inadmissible to change or vary a written agreement. Such evidence cannot be received to contradict or strike out, or add any clause to such an agreement. As prepared and executed, without adding to or taking...