Mclaughlin v. Hinds

• Decision Date: 31 March 1894
• Parties: McLAUGHLIN v. HINDS et al.
• Court: Illinois Supreme Court

151 Ill. 403

38 N.E. 136

McLAUGHLIN

v.HINDS et al.¹

Supreme Court of Illinois.

March 31, 1894.²

Appeal from appellate court, first district.

Assumpsit by the firm of Hinds, Ketcham & Co. against William F. McLaughlin. Plaintiffs obtained judgment, which was affirmed by the appellate court. 47 Ill. App. 598. Defendant appeals. Affirmed.Cratty Bros. & Jarvis, for appellant.

Sidney Smith, for appellees.

PHILLIPS, J.

This is an action of assumpsit brought by appellees against appellant, the declaration containing the common counts only; and the following written contract was attached to the declaration, with notice as follows:

‘Chicago, 6-28-1888. We, the undersigned, agree to furnish Mess. W. F. McLaughlin & Co. five million coffee wrappers, to be of same paper, exactly, as sample attached, and marked ‘A.’ Printing to be same as sample attached, signed and marked ‘B.’ Colors of printing and color work to be exactly same as sample attached, signed and marked ‘C.’ For said wrappers, W. F. McLaughlin & Co. to pay at the rate one dollar ninety-five cents ($1.95) per M. f. o. b. Chicago. First car to be delivered in Chicago October 1st, 1888, and one car the first of each month thereafter until contract is completed. Sample lot of 500,000 to be shipped as soon as convenient. This order is contingent on above sample lot being satisfactory to McLaughlin & Co., as regards conditions of contract for large lot. Hinds, Ketcham & Co.

‘Accepted: W. F. McLaughlin & Co.’

The plaintiffs' claim under the foregoing declaration is for a balance of $3,113.55, with interest thereon from March 12, 1889, due under the contract, of which the foregoing is a copy, for coffee wrappers delivered under such contract. The questions presented on the trial in the circuit court of Cook county were whether the plaintiffs (appellees) had complied with their contract on their part, and shipped the last car load, containing 1,500,000 wrappers of the paper, printing colors and color work in accordance with the contract. The contention on the part of the defendant (the appellant here) was that that was not done. The judgment of the circuit court was for plaintiffs (the appellees here) for the sum of $3,662.70. That judgment was affirmedby the appellate court of the first district, and the questions of fact are settled by those adjudications.

The first question of law presented by this appeal is that a recovery could not be had under the declaration in this case, on the facts presented by this record. We do not feel called upon to discuss the sufficiency of the declaration. In a careful examination of the record, it does not appear that any objection on that ground was made to the introduction of evidence, and no motion to exclude was made. On the contrary, from the record, the case was tried on the theory that the declaration was sufficient. It does not appear that that question was raised in the appellate court. There are neither objection and exception nor motion in the record on which that question can be raised here. Neither can it be raised for the first time in this court.

It is also insisted by appellant that the judgment of the appellate and circuit courts should be reversed because interest was allowed on an open account, which could not be done unless payment thereof has been unreasonably and vexatiously delayed. That question, like that as to whether the contract was performed on the part of appellees, was a question of fact, which we are, by the statute, precluded from determining.

The instructions to the jury...