Robison v. Hibbs

• Decision Date: 30 September 1868
• Citation: 48 Ill. 408,1868 WL 5131
• Parties: MOSES ROBISONv.JOSEPHUS HIBBS.
• Court: Illinois Supreme Court

48 Ill. 408

1868 WL 5131 (Ill.)

MOSES ROBISON

v.JOSEPHUS HIBBS.

Supreme Court of Illinois.

September Term, 1868.

WRIT OF ERROR to the Circuit Court of Warren county; the Hon. ARTHUR A. SMITH, Judge, presiding.

The opinion states the case.

Mr. JOHN PORTER, for the appellant.

Messrs. STEWART & PHELPS, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was a suit brought by appellant, before a justice of the peace of Warren county, against appellee, to recover a small balance of an account. A trial was had, resulting in a judgment in favor of appellee. The case was thereupon removed by appeal to the circuit court, and upon a trial in that court, the jury returned a verdict in favor of appellee for forty dollars. A motion for a new trial was entered, which the court overruled, and rendered judgment on the verdict, and appellant brings the record to this court, and asks a reversal.

The record presents the question, whether the court below erred in permitting appellee to prove his account for damage done by the trespass of appellant's hogs in his corn. It appears that appellant's hogs got into the field of appellee and destroyed some corn, which was proved and allowed against appellant's objection. We are aware of no law which authorizes the unliquidated damages growing out of a tort to be set off in an action ex contractu. It is, however, insisted by appellee that the evidence in this case shows that the damages were liquidated. Bouvier, in his Law Dictionary, defines liquidated to mean “that which is made certain and manifest; as liquidated damages, ascertained damages; liquidated debt, or ascertained debt as to amount.” He further illustrates the meaning of the word when he says: “For, although it may appear that something is due, if it does not also appear how much is due, the debt is not liquidated. An unliquidated claim is one which one of the parties to the contract cannot alone render certain.”

In this case there is no pretense that the quantity of corn, or its value per bushel, or in the gross, was fixed or agreed upon by the parties. It only appears that the corn was destroyed, and appellant promised to pay for it; but nothing was said as to the amount of grain or its value. There can, therefore, be no pretense that the amount of the damages was ascertained, or that facts there agreed to, from which the amount could be ascertained by calculation, and hence the damages were not liquidated, and were,...