The Chicago v. Liddell
| Decision Date | 30 September 1873 |
| Citation | 1873 WL 8530,69 Ill. 639 |
| Parties | THE CHICAGO AND WILMINGTON COAL COMPANYv.ANDREW R. LIDDELL. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
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.
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...
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