Sawyer v. Daniels
| Decision Date | 30 September 1868 |
| Citation | 1868 WL 5097,48 Ill. 269 |
| Parties | SILAS SAWYER, Impleaded with HIRAM F. MEAD,v.FRANCIS A. DANIELS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Chicago.
The facts in this case are fully stated in the opinion.
Messrs. CLARKSON & VANSCHAACK, for the appellant.
Mr. A. E. GUILD, Jr., for the appellee.
This was an action of assumpsit, brought to the Superior Court of the City of Chicago, by Francis A. Daniels, against Silas Sawyer and Hiram F. Mead, on an account for goods, wares and merchandize sold and delivered, money paid, &c., and on account stated. Process was served on Sawyer alone, who pleaded the general issue, accompanied by an affidavit of merits.
The cause was tried at the October term, 1867, the defendant not appearing, and a verdict rendered for the plaintiff for six hundred and fourteen 50-100 dollars, for which judgment was entered. Subsequently, at the same term, this judgment was vacated on the affidavit of Sawyer, the court ordering, on so vacating the judgment, that the cause should be tried on the merits.
On the second trial, the same verdict was rendered, which the court refused, on defendant's motion, to set aside, and entered judgment thereon.
To reverse this judgment, the defendant has appealed to this court, and makes the point, that as no bill of items accompanied the account sued on, the plaintiff should have been confined to the proof of the account as stated.
The account, as stated, showed one thousand dollars as the amount due, and the proof was, and that, too, by the defendant's own affidavit in support of his motion to vacate the first judgment, that the sum of six hundred and fourteen dollars, fifty cents, was the precise amount due. The rule is well settled, a party may recover less than he claims--he is never confined to the precise amount for which he brings suit. Stating in the account accompanying the declaration, an item of one thousand dollars, on one account stated, did not prevent the plaintiff from showing a less amount due, and the more especially in a case when a defendant is under terms to try the case on its merits.
Appellant makes the point, the verdict was contrary to the evidence. The proof of the account was fully established by the plaintiff, as well as by the defendant in his affidavit, and there can be no doubt of its entire accuracy. The contention is, appellant insists this account...
To continue reading
Request your trial
-
Flansburg v. Basin
...41 Ill. 234; T. P. & W. R'y Co. v. McClannon, 41 Ill. 238; Davis v. Hoeppner, 44 Ill. 306; Hope Ins. Co. v. Lonegan, 48 Ill. 49; Sawyer v. Daniels, 48 Ill. 269; C. F. R. & B. Co. v. Jameson, 48 Ill. 281; Palmer v. Weir, 52 Ill. 341; Varner v. Varner, 69 Ill. 445; Kightlinger v. Egan, 75 Ill......
-
Munson v. Osborn
...41 Ill. 238; Town of Vinegar Hill v. Busson, 42 Ill. 45; Davis v. Hoeppner, 44 Ill. 306; Hope Ins. Co. v. Lonergan, 48 Ill. 49; Sawyer v. Daniels, 48 Ill. 269; Sherman v. C. & M. R. R. Co., 48 Ill. 523; Palmer v. Weir, 52 Ill. 341. Upon the rule of construction of contracts: Leavers v. Clea......
- People Ex Rel. Jesse C. Wheaton v. Wiant