The Chicago v. Liddell

• Citation: 1873 WL 8530,69 Ill. 639
• Parties: THE CHICAGO AND WILMINGTON COAL COMPANYv.ANDREW R. LIDDELL.
• Decision Date: 30 September 1873
• Court: Illinois Supreme Court

69 Ill. 639

1873 WL 8530 (Ill.)

THE CHICAGO AND WILMINGTON COAL COMPANY

v.ANDREW R. LIDDELL.

Supreme Court of Illinois.

September Term, 1873.

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding. Messrs. GOODSPEED & SNAPP, for the appellant.

Messrs. BARBER & MUNN, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit, in the Will circuit court, brought by Andrew R. Liddell, against the Chicago and Wilmington Coal Company, on a contract to furnish boarding for certain workmen employed by the company in mining coal. The declaration contained, also, the money counts, and an account stated. The plea was non assumpsit, and a trial by jury, who found for the plaintiff. A motion for a new trial was overruled, and judgment rendered on the verdict, to reverse which defendant appeals.

The first point made by appellant is, that the contract, as set out in the declaration, not being in writing, was void, as within the Statute of Frauds. It is a sufficient answer to this objection to say, the statute was not pleaded.

But the evidence shows the undertaking was not collateral, but primary. No contract was made with any one of the miners for board, but defendant undertook, in the first instance, to pay their board, at the rate of five dollars per week, the company having control of the fund out of which it was to be paid.

As to the alleged variance between the contract set out in the declaration and that proved, we perceive no substantial difference. There is no essential variance.

Upon the point that there was no time fixed for the continuance of the agreement, it is conceded either party could terminate it, after due notice given. Such notice was not given. Though the superintendent, Walker, repudiated the payment on the January pay day, that did not destroy the contract. The company remained liable, notwithstanding this refusal to stop the pay. The principal objection made by appellant, is, in allowing the witnesses, Liddell, Eggleton and Gray, to testify from the bill of particulars filed in the cause. Liddell testified the bill was made out by one Torrey, employed by him for that purpose, from the book kept by Liddell; that Torrey made it by Liddell reading off the names to him and telling him; and he testifies, “I know when that was wrote, and know it was correct.” It was not important he should be able to give the name of each man who boarded at...