The Chicago South Branch Dock Co. v. Dunlap

• Decision Date: 30 April 1863
• Citation: 1863 WL 3174,32 Ill. 207
• Parties: THE CHICAGO SOUTH BRANCH DOCK COMPANYv.GEORGE W. DUNLAP AND BAYLOR H. GWATHMEY.
• Court: Illinois Supreme Court

32 Ill. 207

1863 WL 3174 (Ill.)

THE CHICAGO SOUTH BRANCH DOCK COMPANY

v.GEORGE W. DUNLAP AND BAYLOR H. GWATHMEY.

Supreme Court of Illinois.

April Term, 1863.

ERROR to Superior Court of Chicago.

Assumpsit brought by plaintiff in error against defendants in error, for the use and occupation of certain premises, and for the rent of certain other premises adjacent thereto, which rent accrued by defendants' holding over under a certain written lease, by the terms of which the defendants were entitled, rent free, to use the premises therein described, in their business of making brick, and to have the clay excavated by them from plaintiff's canal, in consideration whereof the plaintiff's canal was to be excavated by defendants, and certain filling done. The premises, for which a recovery for use and occupation was sought, were not mentioned in said lease, and no special contract as to their use was shown. They were, however, occupied by defendants, and the canal on the line of which they lay, excavated, and the clay so removed was used by defendants in their said business, with plaintiff's knowledge and consent. The following instruction was asked by the plaintiff, but refused by the court, who instead gave the instructions quoted by the court in their opinion: “If defendants excavated and used clay from the lands of plaintiff, without any special contract or agreement, but with the knowledge and assent of plaintiff's agent, the law will imply a promise, on the part of defendants, to pay for such clay as much as it was reasonably worth.”

The judgment below was for the defendants, and the questions presented upon error are, whether the value of defendants' labor in making excavations in the canal along the lots not included in said lease, may be by them set off as against plaintiff's claim; and as to the rule of damages presented in said instructions.

Thompson & Bishop, for plaintiff in error.

Walker & Dexter, for defendants in error.

BREESE, J.

There is but one point of any importance to be considered, arising on this record. That is the first and second instructions given by the court for the defendants in error. They are as follows: “In the absence of a special agreement, the defendants are chargeable with no more than the just value of the use of the premises over the amount of the labor performed by them upon the premises, if such labor was done by the consent and with the knowledge of the plaintiff or his agent.” “If the use of the...