Wallace v. Curtiss
| Decision Date | 30 April 1864 |
| Citation | 1864 WL 3118,36 Ill. 156 |
| Parties | JOHN S. WALLACE and THOMAS W. HOLMESv.DEXTER CURTISS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Superior Court of Chicago.
The case is sufficiently stated in the opinion.
Mather & Taft, for appellant.
Walker & Dexter, for appellee.
This was an action of covenant to deliver certain lumber, to be subject to inspection and measurement, by some competent inspector chosen by the parties. The whitewood portion of the lumber was to be inspected into two qualities as specified; the lumber to be delivered at the defendants' lumber yard, in Chicago, by the first day of July, 1861.
The defendants covenanted to receive the lumber and pay for it at the prices agreed upon. The covenant was dated April 10, 1861.
The plaintiff, sometime after this date, in the month of April, 1861, delivered one cargo of lumber, which was inspected and accepted by the defendants.
On the first of May thereafter, the plaintiff offered to deliver to the defendants at their lumber yard another cargo, which the defendants refused to receive, the plaintiff offering to deliver it as provided in the covenant.
The breach was assigned on this refusal, and failure to pay for the first cargo delivered and accepted.
The second count does not vary from the first, essentially, but sets out the contract in full.
The defendants pleaded non est factum, payment, and setoff. Subsequently, by leave of the court, they pleaded eight special pleas.
As no question arises on these pleas, we do not deem it necessary to state them in full or in substance. Issues of fact were made up on all of them, and tried by a jury. A verdict was found for the plaintiff--a motion for a new trial and in arrest of judgment was made, and overruled, and the case brought here by appeal on a bill of exceptions.
The covenant shows that the lumber was to be subject to inspection and measurement at Chicago, by some competent inspector to be chosen by both parties, and the ash lumber to be made merchantable by inspection.
The appellants make several points, the most important of which will be noticed. The burden of the complaint on the part of the appellants is, that the plaintiff was permitted to prove that the first cargo of lumber was inspected and measured by an inspector chosen by the parties, when there was no allegation to that effect in the declaration.
There is no such allegation found in the declaration, but it is made the ground of defense in the special pleas that no inspector was chosen, as provided for in the contract, so that the defendants themselves put in issue that which was omitted in the declaration. The defendants tendered that issue, and the plaintiff had a right to accept it, and go to trial on it. He might have demurred to the pleas as being no answer to the declaration, but he chose to take the issue as tendered. The pleas cured the omission. 1 Ch. Pl. (10th Am. ed.), 673; Elliott v. Stuart, 15 Maine, 160; Slack v. Lyon et al., 9 Pick., 62. The issues were not alone on the facts stated in the declaration, but upon the agreement stated in the special pleas, and they may be taken as amendatory of the declaration, of the issue and verdict, in order to favor the justice of the case. 3 Bevard (S. C.), 362. COLCOCK, J., said in this case, “It is unnecessary to go into the general question, because the defendant, by his pleading, supplied the deficiency of the plaintiff's declaration, and by the plea the agreement is specially set forth and made the subject of the issue referred to the jury.”
To the same effect is Hill v. George, 5 Texas, 87; Fowle et al. v. Welsh, 8 E. C. L., 14, and Fletcher v. Pogson, 10 Id., 96.
The parties having selected Green as the inspector, and he having acted as such on the delivery and acceptance of the first cargo, it was not competent for the defendants to object to him on the delivery of any other cargo, without some imputation of fraud, at least. One of the defendants procured this inspector, stating to him that he had been agreed upon by both parties. So long, then, as the plaintiff was satisfied, the defendants could not recede, nor could another inspector be substituted, unless by mutual consent. No fraud of the inspector is suggested, and if he was deficient in judgment, not being able properly to discriminate the different qualities of lumber, it is the misfortune of the defendants in choosing him. By choosing him, they relied on his judgment and must be concluded by it, in the absence of all fraud. The only objection made to him was, that he was incompetent. These remarks dispose of the case under the motion for a new trial.
As to the motion in arrest of judgment on account of the defect in the declaration, in not setting out the performance of the covenant by the plaintiff as to the inspection and measurement under the contract, it is sufficient to...
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