White v. Hermann

Citation51 Ill. 243,99 Am.Dec. 543,1869 WL 5316
PartiesJOHN P. WHITE et al.v.FERDINAND W. HERMANN.
Decision Date30 September 1869
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

APPEAL from the Superior Court of Chicago.

The opinion states the case.

Mr. CONSIDER H. WILLETT, for the appellants.

Messrs. BOOTH, KREAMER & HUNTER, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action to recover damages for an alleged breach of contract for the sale of a piece of land. Appellants insist that the contract was written and signed, but was never delivered or intended to be delivered, but was accidentally left where appellee obtained possession of the same and is endeavoring to recover damages for its alleged breach. Appellee, on the other hand, contends that the agreement was fairly entered into, executed, signed and delivered, and inasmuch as it was never performed he is entitled to recover the full amount of loss he has sustained by a failure to have the land conveyed. It is first objected, that the contract does not describe the land, and verbal evidence is not admissible for its explanation. If sufficiently described to enable a surveyor to locate it, then the instrument is good and binding; and this is a question for the jury, to be determined from the evidence, unless it is manifest from the instrument that it can not be located. In reading the description of this land, it seems but natural for any one seeing the subject matter to which it relates, to supply the elipses. It refers to the section, the quarter, the township by its number and the meridian, but omits to say that it is north of the base line, or to say that it is of any range, but says it is “14 E. of 3d P. M. When we examine the maps of surveys of public lands, it is discovered that there is no township 38 south of the base, and 14 east of the third principal meridian. Were that meridian extended south thirty-eight townships, and a line were run east, of sufficient length to make fourteen townships, it would be found to reach the State of Tennessee, and some eighty or ninety miles east of its western boundary. And we must take notice that government has made no surveys of lands in that State. It must then be 38 north of the base line, and in range 14 east of the third principal meridian, which would locate the land in Cook county.

If this is an ambiguity at all, it is a patent one, and would be incapable of an explanation by extrinsic evidence. But courts will never permit an agreement to fail when, from the entire instrument and the general acts of the government, it can be seen what was intended by the parties. In this case, by a reference to the land surveys made by the general government, we can see that there is a tract...

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32 cases
  • Campbell v. Campbell
    • United States
    • United States State Supreme Court of Rhode Island
    • July 6, 1909
    ......Osborn, 31 Ind. 249, and White v. Hermann, 51 Ill. 243, 99 Am. Dec. 543. But still it may not prevent any defendant, against whom a recovery is sought from being heard upon the ......
  • St. Louis, Memphis & Southeastern Railroad Co. v. Aubuchon
    • United States
    • United States State Supreme Court of Missouri
    • November 21, 1906
    ...... unity of use has not existed, damages should not be allowed. to the entire tract. Railroad v. Doran, 15 Minn. 230; White v. Railroad, 154 Ill. 620; Sharp v. U.S. 191 U.S. 341; Railroad v. Wilkins, 45 Kan. 674; Gibson v. Fifth Av. Bridge Co., 192 Pa. St. 55;. ... Nelson. v. Wallace, 57 Mo.App. 397; Fenwick v. Bowling, . 50 Mo.App. 516; State v. Whitten, 68 Mo. 91;. White v. Hermann, 51 Ill. 243; Railroad v. Matula, 79 Tex. 580; Underhill on Evidence, sec. 381;. Markham v. Herrick, 82 Mo.App. 327. (8) Where the. court ......
  • Telluride Power Co. v. Bruneau
    • United States
    • Supreme Court of Utah
    • April 18, 1912
    ...... (St. Louis Co. v. Clark, 121 Mo. 169, 25 S.W. 192,. 26 L. R. A. 751; Loloff v. Sterling, 31 Colo. 102,. 71 P. 1113; White v. Hermann, 51 Ill. 243, 99 Am. Dec. 543; Provision Co. v. Chicago, 111 Ill. 651;. Paine v. Boston, 4 Allen (Mass.), 168; Cherokee. v. Land Co., ......
  • Illinois Power & Light Corp. v. Talbott
    • United States
    • Supreme Court of Illinois
    • June 16, 1926
    ......White v. Hermann, 51 Ill. 243, 99 Am. Dec. 543;Keithsburg & Eastern Railroad Co. v. Henry, 79 Ill. 290;Johnson v. Freeport & Mississippi River Railway Co., ......
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