Nixon v. Halley

• Decision Date: 30 September 1875
• Parties: ELIZA NIXONv.JOHN HALLEY.
• Court: Illinois Supreme Court

78 Ill. 611

1875 WL 8545 (Ill.)

ELIZA NIXON

v.JOHN HALLEY.

Supreme Court of Illinois.

September Term, 1875.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of DeKalb county; the Hon. THEODORE D. MURPHY, Judge, presiding.

Mr. R. L. DIVINE, and Mr. JOHN J. MCKINNON, for the plaintiff in error.

Mr. H. A. JONES, for the defendant in error.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of assumpsit, brought by John Halley, against Eliza Ball, to recover a certain sum of money claimed to be due for labor performed and goods furnished, in the years 1861 and 1862, in the State of Iowa.

A trial of the cause was had before a jury, which resulted in a judgment in favor of the plaintiff, to reverse which the defendant has brought this writ of error.

On the trial, the defendant requested the court to give to the jury the three following instructions:

“The jury are instructed, as matter of law, that the items in plaintiff's bill of particulars in this case, of $17.40, balance of an old account, can not be recovered for in this case, in the absence of testimony to show that it originally accrued under or by means of a contract relating to the defendant's separate property.

Although the jury may believe, from the testimony, that, at the time of the making of the alleged contract between plaintiff and defendant to render services upon the dam or mill property in Iowa, and to furnish material and labor for the same, the defendant claimed and represented herself to be the owner of such dam and mill property, still the defendant in this suit has the right to show that she was not such owner in fact; and if the testimony fails to show she was such owner in fact, or that some other person was such owner at that time, then, as to all such services, labor and materials, the jury should find for the defendant.

Unless the testimony in this case shows that, at the time of the alleged contract for the rendition of services and furnishing of materials and labor by the plaintiff, for the defendant, upon the dam or mill property in Iowa, the defendant was in fact the owner of such dam and mill property as her own separate estate, then, as to all such services, labor and materials, the jury should find for the defendant.”

These instructions the court refused, and the decision of the court is relied upon as error.

The plaintiff, since the cause has been pending in this court, has remitted from the judgment recovered that portion of the account mentioned in the first refused instruction, which obviates the necessity of considering the decision of the court in its refusal.

In order to comprehend fully the questions involved in the second and third refused instructions, and their legitimate bearing in the case, a brief reference to the leading facts becomes necessary.

It appears, from the record, that the defendant was the wife of one Daniel H. Ball; that the mill property upon which the plaintiff performed the labor, to recover for which this action was instituted, was at one time owned by James A. Ball, a son of defendant's husband. In the spring of 1859, John A. Ball, after having mortgaged the property, moved to California, and never returned. In the fall of 1861, it became necessary to make certain repairs on the dam of the mill property, and Daniel H. Ball went to Iowa to the property, from his residence in this State, for the purpose of making the repairs. Upon his arrival, he had an interview with the plaintiff, and employed him to work a few days on the property, until the defendant should arrive. Other hands were employed, and a family placed in the mill house to board the hands.

In a few days, the defendant followed her husband. Upon her arrival, as was...