Mckichan v. Mcbean
| Decision Date | 30 September 1867 |
| Citation | 45 Ill. 228,1867 WL 5254 |
| Parties | SOLOMON MCKICHAN et al.v.JOHN MCBEAN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.
The opinion states the case.
Messrs. ARRINGTON & DENT, for the appellants.
Messrs. BECKWITH, AYER & KALES, for the appellee.
This was an action of assumpsit, brought by John McBean and George W. Wilson in the Circuit Court of Cook county, against Solomon McKichan and James Campbell, to recover a balance claimed to be due on a cargo of wood. It appears the wood was sold and delivered in Chicago, in the month of August, 1863. It is claimed by plaintiffs below that there were 194 1/2 cords of hickory wood delivered at the wharf of defendants below, and that the price agreed upon was $7.50 per cord, amounting to the sum of $1,458.75, upon which it is admitted defendants paid $923.60, but they claimed a balance of $535.15 to be due them. A trial was had before the court and a jury, who found for the plaintiffs and assessed their damages at $535.15. A motion for a new trial was entered, but overruled by the court and judgment rendered on the verdict.
The first objection urged for a reversal is, the overruling the motion for a continuance. The affidavit on which it was based stated, that Darling was a material witness on the trial of the cause; that the principal contest in the case related to the measurement of the wood delivered; that Darling had examined it in Canada, whence it was shipped to Chicago, with a view to its purchase, but declined purchasing it, for the reason that he believed there was not the quantity stated by the owners thereof, and that the wood was loosely piled at the place referred to in Canada, and that it was in such a condition that an exact measurement could not, at the time and place, have been made, and was so piled that the quantity could not be ascertained with reasonable certainty.
The affidavit also alleges, that Darling had been engaged in the purchase and sale of wood for five years previously; that he resided in Chicago; that about the 15th of April previous, he had left the State for Canada, and had not returned within the jurisdiction of the court, and was still absent temporarily; that affiant did not learn of the absence of the witness until after the third day of the term at which the application for a continuance was made.
It will be observed that this affidavit does not state the amount the owners in Canada represented there was of this wood. For aught that appears, he may have represented it as containing a much larger amount than is claimed by defendants in error. McKichan states that he would prove that witness declined to purchase because it did not, in his opinion, contain the quantity represented. There is nothing from which we can learn the quantity represented, and hence this statement, if proved, would be entirely insufficient to show how much there really was. And it appears that the person who measured it in Canada docked the amount claimed, thirteen cords. So we are not able to see but defendants below have had the benefit of all the evidence that they could have had with this witness on the stand, as to the fact that it would fall short in measurement. As to the statement that the wood was in such a condition that any exact and proper measurement could not, at the time and place, have been made, and the quantity could not be...
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