The Rockford v. Jeremiah B. Lent.

• Decision Date: 31 January 1872
• Citation: 63 Ill. 288,1872 WL 8176
• Parties: THE ROCKFORD, ROCK ISLAND AND ST. LOUIS R. R. CO.v.JEREMIAH B. LENT.
• Court: Illinois Supreme Court

63 Ill. 288

1872 WL 8176 (Ill.)

THE ROCKFORD, ROCK ISLAND AND ST. LOUIS R. R. CO.

v.JEREMIAH B. LENT.

Supreme Court of Illinois.

January Term, 1872.

APPEAL from the Circuit Court of Cass county; the Hon. CHARLES TURNER, Judge, presiding.

Mr. CHARLES M. OSBORN, for the appellant.

Messrs. POLLARD & PHILLIPS, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of assumpsit, brought by the appellee in the Cass circuit court, against appellant, on a written contract. The appellee bound himself to deliver to appellant 10,000 posts of specified kinds of timber, “not less than seven feet in length, and of the size of not less than four inches full, and cross section 24 inches.” It was also agreed, “that if said posts are of the required length and diameter, as set forth in the above, then the said posts shall be passed and received by the party of the first part, anything hereinbefore contained to the contrary notwithstanding.” And the parties bound themselves unto each other in the penal sum of $1000, as liquidated damages, to be paid by the failing party.

Appellee claims that he has fulfilled his part of the agreement by delivering the required number of posts within the specified time, and of proper dimensions, and that the company refused to inspect, receive or pay for them, and, hence, he has sued to recover the damages of $1000.

On the trial in the court below appellee's witnesses testified that the posts were of the dimensions required; that they were delivered within the time, and that the proper agents of the company were notified of the fact, but that they refused to inspect or receive the posts, and there is no pretense that they have paid for them. The grounds upon which appellant bases its defense is that the posts are, in size, less than four inches full, and that they will not cross-section 24 inches. Appellee swears the posts would measure four inches in diameter, and that they would cross-section 24 inches; and says that to ascertain the cross-section he would measure diagonally from each of the four corners of the post to the opposite diagonal corners, and ascertain the length of all four lines; or diagonally through the post from corner to corner, and multiply the length of the line by four. And in this he is supported by Briggs, who states that his rule for cross-sectioning is by the same measurement.

Appellant's witnesses testify that the true rule is to cut off a section from...