Sleuter v. Wallbaum

• Decision Date: 30 September 1867
• Citation: 45 Ill. 43,1867 WL 5218
• Parties: CHRISTOPHER SLEUTER et al.v.AUGUSTUS WALLBAUM.
• Court: Illinois Supreme Court

45 Ill. 43

1867 WL 5218 (Ill.)

CHRISTOPHER SLEUTER et al.

v.AUGUSTUS WALLBAUM.

Supreme Court of Illinois.

September Term, 1867.

APPEAL from the Superior Court of Chicago.

The facts in this case are stated in the opinion.

Messrs. SHOREY & HAYES, for the appellants.

Messrs. HERVEY, ANTHONY & GALT, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by Augustus Wallbaum, in the Superior Court of Chicago, against Christopher Sleuter and Christopher Tegtmeeger, to recover damages for an alleged breach of contract to deliver one million of brick, during the season of 1866. The contract is claimed to have been made in the month of June of that year. A trial was had before the court and a jury, resulting in a verdict in favor of the plaintiff, for the sum of $1,000. Defendants entered a motion for a new trial, which was overruled by the court, and judgment rendered on the verdict. A reversal is asked on two grounds, first, -- that the evidence fails to prove that a contract was in fact ever made, and, secondly, if a contract was proved, that the court gave erroneous instructions as to the mode of measuring the damages.

As to the first question, in the view we take of the case, it is deemed improper to consider the weight of the evidence, or whether it sustains the verdict. When the case shall be passed upon by another jury, it will be for them to consider the evidence, perfectly free from any opinion we may entertain as to its weight.

Appellants asked the court to give this, which was the fourth in the series of their instructions: “If you find that a contract was entered into by the defendants, as alleged in the plaintiff's declaration, for the sale of one million brick, at the price of $8.50 a thousand, that the plaintiff demanded said brick, and the defendants refused to deliver the same, you will first ascertain from the evidence when said demand and refusal occurred, and what the market price of such brick was at the time of said demand and refusal, and, if at the time of said demand and refusal, the market price was higher than the price named in the contract, then you will give a verdict for the plaintiff for the difference between such market price and the price agreed upon, and interest at six per cent from the time of such refusal.” Which was refused by the court, and an exception taken. From the current of authority, both British and American, the doctrine seems to be well settled, that on a breach of contract in failing to deliver chattels or other commodities, the measure of damages is the difference between the contract price and the market value of such articles, at the time they should have been delivered by the contract. If they have been paid for, then the money thus paid, and legal interest, should also be allowed thereon from the time of its payment until a recovery is had. Smith v. Dunlap, 12 Ill. 184; Phelps v. McGee, 18 Id. 155....