Ogden v. Kirby

Citation1875 WL 8687,79 Ill. 555
PartiesWILLIAM B. OGDEN et al.v.ABNER KIRBY.
Decision Date30 September 1875
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Cook county; the Hon. JOSEPH E. GARY, Judge, presiding.

Messrs. TENNEYS, FLOWER & ABERCROMBIE, for the appellants.

Messrs. J. R. DOOLITTLE & SON, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of assumpsit, brought by appellants in the Superior Court of Cook county, against appellee, to recover a subscription of $2000, subscribed by him to aid in the construction of a railroad from Ft. Howard, Wis., to Menominee, Mich.

By the terms of the subscription, it was only payable provided the railroad should be completed and in operation to Menominee, Mich., by July 1, 1872. A trial of the cause before a jury resulted in a verdict and judgment in favor of appellee, to reverse which appellants rely upon the following errors assigned upon the record:

1. In the construction it gave to the written contract sued on, particularly in regard to what constitutes a completion and operation of said railroad.

2. In refusing the first instruction asked for by plaintiffs and in modifying it.

3. In giving the first instruction asked for by defendant, because the same is uncertain and misleading in its terms, and decides a question which should have been left to the jury.

4. In giving the last clause of the fifth instruction asked for by the defendant, and in giving the whole or any part of the sixth and seventh.

5. In refusing each or either of the eight instructions asked for by plaintiffs and refused.

6. In refusing a new trial and rendering judgment for defendant.

The question presented by the first error assigned will more properly arise upon consideration of the instructions. Appellants' first instruction, the modification of which is assigned as error, was as follows:

“The jury are instructed that the true construction of the written subscription is, the defendant agrees to pay to the plaintiffs, for the benefit of the builders of the railroad in question, the sum of $2,000, to be given over to said builders when said road should be completed and in operation from Fort Howard to Menominee, in Michigan, provided it should be so completed and in operation by the 1st of July, 1872.”

The court refused to give the instruction as asked, but added thereto the words “the village of” before “Menominee,” and thus gave it.

The contract upon which the action was brought specified Menominee, Michigan, as the point to which the railroad should be constructed. It appears, from the evidence, that there was a large township named Menominee, which contained in the neighborhood of forty townships, six miles square, and also a village of the same name, containing some 3,000 inhabitants.

If the contract was ambiguous, which it clearly was, then it was the duty of the court to determine what was meant by the use of the words “Menominee, Mich.”

While the village was not incorporated under the laws of Michigan, yet it was platted, contained a post office, business houses, and had a well known existence as a village, in fact as much so as if it had been incorporated.

We are satisfied, from the evidence, the court placed the proper construction upon the contract, and we see no error in the modification of the instruction.

The first instruction given for appellee, the giving of which is questioned by the third assignment of error, is as follows:

“The jury are instructed that if they find, from the evidence, that the township of Menominee, Michigan, embraces a large unsettled country, containing many townships, and also a village of Menominee, they will find that it was the village of Menominee, and not the large township, which was intended by the contract.”

From what was said in regard to the modification of appellants' first instruction, it follows that the exception to this is not well taken.

The vital point in the case, as we understand the record, is presented by the fourth assignment of errors.

The contract upon which the action was instituted required, as a condition precedent to a recovery, two things to be done by the first day of July, 1872. First, that the road should be completed to Menominee; second, that it should be in operation. When a railroad is to be regarded as completed and in operation, is not a question of law for a court to decide, but is a question purely of fact, for the determination of a jury from the evidence introduced bearing upon that question.

This question was fairly and properly submitted to the jury by the fourth instruction given for appellee, which, in substance, declared that it was not enough for the plaintiffs to show that the railroad was completed to Menominee, Mich., by July 1, 1872; but they must show, by a preponderance of proof, that the railroad was operated to that place by that time.

The appellee was not, however, satisfied to leave the jury free and untrammelled to determine whether the road was in fact operated by the first of July, but he advanced one step further, and, by the fifth...

To continue reading

Request your trial
38 cases
  • Flansburg v. Basin
    • United States
    • United States Appellate Court of Illinois
    • December 31, 1878
    ......Johnson, 72 Ill. 513; Holmes v. Hale, 71 Ill. 552; Ogden v. Kirby, 79 Ill. 555.        Affidavits of jurors cannot be received to show misconduct on the part of one of their number: Cleem v. Smithe, ......
  • Brant v. Gallup
    • United States
    • United States Appellate Court of Illinois
    • October 31, 1879
    ......v. Paige, 60 Ill. 448; Homes v. Hale, 71 Ill. 552; Hatch v. Marsh, 71 Ill. 370; Hewett v. Johnson, 72 Ill. 513; Calef v. Thomas, 81 Ill. 478; Ogden v. Kirby, 79 Ill. 555; Frame v. Badger, 79 Ill. 441; T. W. & W. Ry. Co. v. Brooks, 81 Ill. 245; Cushman v. Cogswell, 86 Ill. 62; Martin v. Johnson, ......
  • Garvey v. Scott
    • United States
    • United States Appellate Court of Illinois
    • May 31, 1881
    ......Thomas, 81 Ill. 478; Cushman v. Coswell, 86 Ill. 62; Evans v. George, 80 Ill. 51; Ogden v. Kirby, 79 Ill. 555; Callaghan v. Myers, 89 Ill. 566;         [9 Ill.App. 21] Ill. Linen Co. v. Hough, 91 Ill. 63; C. B. & Q. R. R. Co. v. ......
  • Davis v. Wabash, St. L. & P. Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • June 21, 1886
    ......222; Raysdon v. Trumbo, 52 Mo. 38; Ellis v. McPike, 50 Mo. 575;. Bank v. Currie, 44 Mo. 92; Bank v. Armstrong, 52 Mo. 73; Ogden v. Kirby, 79 Ill. 555. (g) It is further faulty in telling the jury that this. presumption of misconduct "must be overcome by. proof." Gillespie ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT