The Singer Mfg. Co. v. Pike
| Citation | 12 Bradw. 506,12 Ill.App. 506 |
| Parties | THE SINGER MANUFACTURING COMPANYv.EDWARD M. PIKE. |
| Decision Date | 31 October 1882 |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Superior Court of Cook county; the Hon. SIDNEY SMITH, Judge, presiding. Opinion filed January 30, 1883.
This was assumpsit brought by appellee Pike, against the Singer Manufacturing Company to recover damages for the breach of an alleged agreement to assign and deliver to appellee certain promissory notes which he claimed to have purchased of the company. The declaration, as amended, contains the common counts, and several special counts on the contract.
It appears from the evidence that one Hogue had been acting as agent of the company in selling sewing machines at Fairbury, Ill., the company having its office at Chicago. The machines when delivered to Hogue, were charged to him in account, and upon selling machines and taking notes therefor, he transmitted the notes, indorsed and guaranteed by him, to the company at Chicago, where they were credited to his account. When any of them proved not to be collectible, they were charged back to him. He was required by the company to give bond with sureties, to protect the company against loss on such notes as were not collectible. He accordingly gave such bond in the penal sum of $1,000 with appellee Pike, and one Fugate as sureties.
In September, 1874, the company notifed Pike that Hogue was in arrears, and requested him to make good the deficit, which the company claimed to be equal to the amount of the bond. Pike thereupon called upon the company and it was finally agreed between them, as Pike claims, that upon his paying $900 within a given time, the company should cancel the bond, retain $557 theretofore received by it out of Hogue's commission, and assign and deliver to him not only the notes which had been charged back to Hogue, but also all the uncollected notes which had been returned by Hogue and were then in the company's possession. This was denied by the company, it claiming that the agreement only embraced such notes as had been charged back to Hogue as not collectible. This was the principal question of fact in dispute at the trial, and the evidence in relation to it was strongly conflicting.
There was a jury trial resulting in a verdict for the plaintiff, which was set aside by the court, and the plaintiff thereafter, by leave of the court, filed two additional special counts, setting out the agreement substantially as above stated, and alleging that in consideration of the premises, and of the payment of $900, the company promised to assign and deliver to the plaintiff all of the Hogue notes then in its hands, which it refused to do.
Mr. B. D. MAGRUDER, for appellant; that instructions which single out isolated portions of the evidence and give them undue prominence, are erroneous, cited St. L. & S. E. R'y Co. v. Britz, 72 Ill. 256; Hewett v. Johnson, 72 Ill. 513; Hessing v. McCloskey, 37 Ill. 341; Frame v. Badger, 79 Ill. 441; Howe S. M. Co. v. Layman, 88 Ill. 39; Hite v. Blandford, 45 Ill. 9; Franz v. Rose, 89 Ill. 590; Von Glahn v. Von Glahn, 46 Ill. 134; Nichols v. Mercer, 44 Ill. 250; Cushman v. Coggswell, 86 Ill. 62; King v. Haley, 86 Ill. 106; Piner v. Cover, 55 Ill. 391; C. B. & Q. R. R. Co. v. Griffin, 68 Ill. 499; Hassett v. Johnson, 48 Ill. 68; Prescott v. Maxwell, 48. Ill. 82; Piatt v. The People, 29 Ill. 54.
An instruction which has no basis either in the declaration or the evidence, is erroneous; E. St. L. P. & P. Co. v. Hightower, 92 Ill. 139; Seckle v. Scott, 66 Ill. 106; C. W. D. R. W. Co. v. Hughes, 69 Ill. 170; Seibert v. Bach, 36 Ill. 195; Davidson v. Johnson, 31 Ill. 523.
If the consideration to be paid is single and entire, the contract must be held to be entire: 2 Parsons on Contracts, 517; Miner v. Bradley, 22 Pick. 457; Johnson v. Johnson, 3 W. & S. 109; White v. Brown, 2 Jones, 403; Dula v. Cowles, 2 Jones, 454; Biggs v. Wisking, 14 C. B. 195.
An obscure instruction may be properly refused: Roth v. Smith, 54 Ill. 431.
Where evidence is conflicting, instructions should be accurate: Am. Ins. Co. of C. v. Crawford, 89 Ill. 62; Wabash R'y Co. v. Henks, 91 Ill. 408.
Messrs. W. G. & A. T. EWING, for appellee; as to measure of damages, cited Am. Express Co. v. Parsons, 44 Ill. 312.
The main question in controversy upon the trial was, as to whether the agreement for the surrender of the notes included all the unpaid notes indorsed by Hogue, or only such as had been charged back to him. If the jury had been properly instructed, we should not feel at liberty to disturb their finding, in view of the serious conflict in the evidence. The jury who saw and heard the witnesses, are so much better able to judge as to the weight to be given to their testimony, than an appellate tribunal can be, that the rule has become fixed that unless the verdict is clearly and manifestly against the preponderance of the evidence, it must be held conclusive upon mere questions of fact.
But the rule is also settled that when the evidence is conflicting, and the merits of the case doubtful, the...
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