William Dickhut v Thomas Durrell Lawsuit

Source: Reports Of Cases Illinois
Written: 1849

William Dickhut v. Thomas Durrell.

Error to Adams.

1. New trial — exceptions must show proceeding, or no review. Where a motion
for a new trial was made in the court below and overruled, the evidence
embodied in a bill of exceptions, but no allusion made in the bill to the
motion or decision of the court thereon, the decision of the circuit court, in
overruling the motion, will not be reviewed by this court.(l)

2. Exceptions — to evidence or instructions must be specific. Where a bill of
exceptions was signed and filed several days after the trial took place,
embracing the evidence and instructions of the court, and concluding, "To all
of which said defendant excepts," no error predicated upon such bill can be
noticed by this court. (2)

3. Practice — exception must be at time of ruling. A party, to avail himself
of an exception to a decision of the circuit court, must take the exception at
the time the decision is made; and the bill of exceptions must affirmatively
show that it was taken at that time.(3)

4. Same — no presumption as to time of exception. This court will not presume
that an exception was taken at the proper time, merely because, the judge who
tried the cause has signed a bill of exceptions, when the bill does not show
upon its face at what time the exceptions were, in fact, taken.

5. Stare decisis — rules of practice. An established rule of practice, which
has been acted upon for several years, ought not to be changed, even admitting
that at the beginning it would have been better if a different rule had
prevailed.(4)

6. Demurrer — waived by plea. Where a demurrer is sustained to a plea, and the
defendant is required to answer over, and he does file other pleas, the
demurrer is waived, and the decision upon it can not be assigned for error.(5)

7. Vendor and vendee — breach of covenant to deliver. To an action on a
covenant for the delivery of a specific quantity of lumber, the party relying
on a performance of his covenant, must in his plea aver that he was ready and
able to deliver the lumber at the time and place mentioned in the covenant.(6)

8. Same. An averment that the covenantee was then and there informed and
advised that the lumber was ready for him, is insufficient.

This was an action of covenant instituted in the Adams circuit court, by the
defendant in error against the plaintiff in error, upon a sealed agreement of
the parties, in substance as follows, viz:

"That the said Thomas Durrell agrees to raft at Hill's mill, on the Wisconsin
river, 110,000 feet of pine lumber, which belongs to said William Dickhut and
Robert Bennison, and to deliver said raft, in good order, on the wharf at the
city of Quincy, as soon as the same can be done; all at the expense and charge
of the said Durrell. In consideration of which the said Dickhut agrees to pay
the said Durrell $370, when said lumber shall be delivered as aforesaid.
William Dickhut, (seal.)
Thomas Durrell," (seal.")

The declaration contained two counts, which are substantially alike, and
contain the following averments:

"And although the said Durrell hath well and truly performed and fulfilled all
and singular the covenants in the said agreement mentioned, on his part and
behalf to be done and performed, and did as soon as the same could be done, to
wit., on the 4th day of April, 1840, provide at his own expense and charge, a
sufficient number of hands to raft 110,000 feet of pine lumber from Hill's
mill, on the Wisconsin river, and to deliver the same in good order, on the
wharf at the city of Quincy, and proceeded immediately, to wit, on the said
4th day of April, 1840, to said Hill's mill, on the Wisconsin river, and
demanded said 110,000 feet of pine lumber, and was ready and willing, and
offered to raft the same from said Hill's mill, on the Wisconsin river, and to
deliver the same, in good order, on the wharf, at the city of Quincy, as soon
as the same could be done — all at the expense and charge of him, the said
Durrell, yet protesting that the said Dickhut hath not performed and fulfilled
any thing in the said article of agreement mentioned on his part and behalf to
be done and performed. The said Durrell, in fact, saith, that the said
Dickhut, after the making of said article of agreement, wholly failed and
refused to furnish to him, the said Durrell, the said 110,000 feet of pine
lumber at Hill's mill, on the Wisconsin river, to be rafted by him, the said
Durrell, to the city of Quincy, although the said lumber was demanded by the
said Durrell at the said Hill's mill, to be rafted as aforesaid, and hath
wholly failed and refused to pay to the said Durrell the said sum of $370, as
he had covenanted to do, and still doth refuse," etc.

The defendant, Dickhut, appeared to the action, and pleaded, in the first
instance, four pleas: 1st, non est factum, upon which issue was taken 2d, a
plea of general performance, in the usual form, to which plaintiff demurred,
and defendant confessed the demurrer. 3d, a plea alleging that when plaintiff
arrived at Hill's mill, the 110,000 feet of lumber was ready to be delivered
to the plaintiff, and was offered to the plaintiff, and he refused to receive
the raft the same, etc. A replication was filed, traversing the facts stated
in the plea, and issue was joined thereon. 4th, a plea in these words: "And
for further plea, etc. plaintiff actio non, because he, the said defendant,
says that when the said plaintiff arrived at Hill's mill, on Wisconsin river,
there was then and there ready for delivery to him a large quantity of pine
lumber, to wit, 30,000 feet, and that said lumber was then and there offered
to the said plaintiff, and he was then and there requested to take the same to
be rafted and delivered according to the terms of the covenant aforesaid; and
said plaintiff was then and there informed and advised that all the balance of
said 110,000 feet of lumber should be furnished and delivered to him, the said
plaintiff, as fast as he could raft the same; the said plaintiff then and
there wholly refused and neglected, and hath ever since refused and neglected,
to raft said lumber and deliver the same to the said defendant," etc.

To this plea a replication in these words was filed: "And the said plaintiff
says precludi non, etc., because he says he did not refuse to receive and raft
the said 110,000 feet of lumber, in manner and form," etc.

Defendant demurred to this replication, and the court sustained the demurrer
to the fourth plea, and the order of the court was, "that the defendant do
further answer to the said plaintiff's declaration."

The defendant thereupon filed his pleas, numbers 5 and 6. These pleas averred
that the defendant was ready to furnish, and did offer to furnish, the 110,000
feet of lumber at Hill's mill, etc., to the said plaintiff, upon which issues
were joined.

The cause was tried on the third day of March, 1842, upon the issue joined as
hereinbefore set forth, before justice Douglas, and a jury, when a verdict was
rendered in favor of the plaintiff for the sum of $284 25, damages, and a
judgment pronounced thereen. A motion for a new trial was made on the 9th day
of March, 1842, overruled and a bill of exceptions taken and filed at the time
the motion for a new trial was overruled.

The bill of exceptions sets out all the evidence, and instructions asked and
given on the part of the plaintiff, and numbered 1 to 5, and concludes as
follows, viz: "to all of which the said defendant, by his counsel, excepts,
and prays that this his bill of exceptions may be signed, sealed, etc." No
mention is made of a motion for a new trial, and no exceptions other than in
the manner above named were taken to the instructions of the court.

The errors relied upon are:

1. Overruling defendant's motion for a new trial.

2. Giving the instructions asked by plaintiff.

3. Sustaining demurrer to plea No. 4.

Williams & Lawrence, for plaintiff in error: As to the construction of the
contract: Watts v. Shephard, 2 Ala., 425; M'Geecher v. Hill, 1 Ala., 140;
Young v. Poster, 7 Porter, 420,

As to the bill of exceptions: The bill of exceptions was filed in this case
upon the overruling of the motion for a new trial, as stated in the order of
the court, and the exception is stated in the present tense. The reasonable
intendment is that the exceptions were seasonably taken. Harlow v. Humiston, 6
Cowen, 189; Wakeman v. Lynn, 9 Wend., 242. In any event, now that a decision
overruling a motion for a new trial can be assigned for error, it is in season
to except to the instructions upon the decision of such motion. There are but
two cases in our reports which look to the contrary: 2 Gilman, 293; 3 Scam.,
17. The case in Gilman we regard but as a dictum (as the court reversed the
judgment on other grounds); which dictum is placed on the authority of the
case in Scammon. The case in Scammon is also but a dictum of the judge who
delivered the opinion, the counsel in that case not having assigned for error
the instructions of the court, and not having made those instructions a ground
for a new trial in the circuit court. The fact that these instructions were
not made a ground for a new trial in the court below, is first given in the
opinion of this court as the reason for refusing to consider those
instructions. We therefore deem ourselves at liberty to say, that these cases
are not authority, and that the question is still open to be examined upon
principle. The original rule as to taking exceptions at the trial, applied
only to exceptions to evidence. Wright v. Sharp, 1 Salkeld, 288-9; 2 Tidd's
Practice, 863; Bacon's Abridg., title, "Bills of exceptions. It has been held
in numerous cases that exceptions may be alleged to instructions of the court,
after the verdict is returned, but before it is pronounced in open court. 1
Binney, 38; 4 Dallas, 249; 10 J. R., 312; 5 Monroe, 177 ; 8 S. & E., 211. The
distinction as to taking exceptions before and after verdict is practically
abolished in this state, by the law allowing exceptions to the overruling of a
motion for a new trial; and the bill of exceptions in this case was filed in
court on the decision of such a motion, and one of the grounds of the motion
was the erroneous instructions of the court. The following cases are to the
point: 4 Bibb, 278; 9 Conn., 545; 7 Watts & Searg., 172, quoted 1 Sup. to U.
S. Dig.; 5 Smedes & Marshall, 51; 3 Pick., 173. See, also, 8 Cowen, 707-8-9,
showing how anxiously an appellate court will devise means of overcoming
technical objections, where there is manifest error on the face of the record.

(We annex comments on the authorities cited by the counsel for the defendants
in error.)

Comments on cases cited by defendants:

The case of Clemson v. Krupper, Breese, 162, merely decides that a refusal to
grant a new trial can not be assigned for error. The bill of exceptions was to
the evidence, and not to the instructions. The court further say, that if the
counsel mistook the law in regard to bills of exceptions, it might be ground
for relief in a court of equity. Bather strange doctrine. In the case of
Snyder v. Laframboise, Breese, 270, in which there was a bill of exceptions to
evidence, the evidence not being excepted to at the time, the court say, in
regard to the inadmissibility of the evidence, that "were there no other
objection to the judgment, the court might well doubt whether they ought to
interfere," and then proceed to reverse the judgment, because the instructions
were wrong. The case of Gilmore v. Ballard, 1 Scam., 253, merely remarks
generally that an exception must be taken on the trial, and is decided wholly
upon the ground that the cause having been tried by the court, and no motion
having been made for a new trial, the supreme court could not review the
evidence. Leigh v. Hodges, 3 Scam., 17, is the opinion of judge Breese already
commented upon, where the misdirection of the court had not been made a ground
for the new trial below. In Miere v. Brush, 3 Scam., 23, the record recited
that, "on the 18th day of August" (after the term) "the defendants filed in
the clerk's office their bill of exceptions," and the court say, "it no where
appears on the record that they alleged any exception whatever to any decision
of the court." The case of Gibbons v. Johnson, 3 Scam., 63, was where the bill
of exceptions was not taken till two days after the judgment. In the case of
vanderbilt v. Johnson, 3 Scam., 50, the record did not show upon what grounds
the motion for a new trial was made in the oourt below, or that the affidavit
in the record had been brought to the notice of the court on hearing the
motion, or that an exception was taken to the decision of the court, which the
court say should have been done for the purpose of incorporating the
affidavit, and other evidence relied on, in their bill of exceptions. The case
of Heaton v. Kemper, 3 Scam., 367, was precisely like the case at bar: the
bill of exceptions appearing as to form, and the time when taken, antl in all
other particulars, to be identically like the one in this case, and the court
do consider ihe instructions and pass upon them. In Cummings v. McKinney, 4
Scam., 59, the supreme court did consider and pass upon a bill of exceptions
taken after the overruling of a motion for a new trial. In Saunders v.
M'Collins, 4 Scam., 419, no bill of exceptions of any sort was taken. The case
of Barnes v. Barber, 1 Gilm., 408, has not the remotest application to the
case at bar. In Wren v. Moss, 1 Gilm., 560, the court reversed the judgment,
because the circuit court had refused an instruction, though it is not stated
in the case that the refusal to instruct was excepted to at the time. In
Miller v. Dodson, 1 Gilm., 574, the court merely say that the refusal of the
circuit court to grant a new trial, can not be inquired into, as no exception
was taken, and that the record showed no reason for granting a new trial. The
case of Hill v. Ward, 2 Gilm., 293, is the one already commented upon, and
contains, as we deem, but a dictum of the court referring to judge Breese's
dictum in Leigh v. Hodges, 3 Scam., 17. already referred to, for authority.

These are all the cases in our reports, except 5 Gilm., 456, noticed below,
referred to by the counsel for the defendant; and it will be perceived that
there are only two of them (Leigh v. Hodges, 3 Scam., 17, and Hill v. Ward, 2
Gilm., 293,) which even refer to the question as to whether the instructions
of the court may not be made the ground of a motion for a new trial, and
presented to this court upon the decision of such motion, though the
instructions may not have been excepted to at the time they were given.

In Evans v. Fisher, 5 Gilm., 456, another case cited by defendants, the court
merely say that a bill of exceptions should appear on its face to have been
taken at the trial, but the court refuse to strike the bill in that case from
the record, because it had been prepared and signed after term. In Sheppard v.
Wilson, 6 Howard, U. S. Rep., the court decided that the supreme court of Iowa
committed no error in rejecting a bill of exceptions, taken and purporting on
its face to have been taken over two years after the trial of the cause. In
Line v. Evan, 1 Pike, 358, the court merely decide that the pleadings should
not be put into a bill of exceptions, and state truly the object of a bill —
to preserve the evidence. In 2 Pike, 20, there was no bill of exceptions
setting out the evidence in the case, but only notes of the evidence, which
the court refused to consider. In Walton v. The U. States, 5 Cond. Rep., 721,
the exceptions were to the evidence, and the court say that the exception
should be taken at the trial; but in this very case the court, before
remarking this, had considered the evidence, and decided the case upon the
merits. In 3 Pike, 452 and 461, the bill of exceptions was filed the day after
judgment was entered, and considered a good bill. In the case in 3 Howard's
Miss. Rep., 117, a motion had been made in the court below for leave to
withdraw a plea on affidavit. The bill of exceptions did not state the motion,
and it was brought before the supreme court only by affidavit. The court
decide that the motion should have been presented in the bill. In this case
there was a bill taken, after a motion for a new trial had been overruled, and
the court considered the questions presented by it. In 1 Howard, 126, the
instructions had not been excepted to when they were given, and no motion for
a new trial had been made.

Browning & Bushnell, for defendant in error: 1. An agreement will be construed
with reference to extrinsic circumstances surrounding the transaction, and the
situation of the parties, and the subject matter of the contract. Sayer v.
Peck, 1 Barb., 464; Hasbrook v. Paddock, 1 Barb., 635, 638-9; Brown v. Slater,
16 Conn., 192. The language used by one party in a contract is to receive such
a construction as he supposed the other party would give to it, or such
construction as the other party was fairly justified in giving it, and where
equivocal words are used, they are to be taken most strongly against the party
using it. Gunnison v. Bancroft, 11 Vermont, 490; Evans v. Saunders, 8 Porter,
497; Hawes v. Smith, 3 Fairf., 429. Words in a contract will bo construed to
give effect to the contract, and so as to meet the real intention and
understanding of the parties. Thrale v. Newall, 19 Vermont, 202; Ferguson v.
Coleman, 3 Richardson, 99; Wilson v. Jones, 8 Alaba., 536; Russell v. Nicoll,
3 Wend., 118.

2. The representation in the contract is, that Dickhut & Bennison had lumber
at the mill at the time of the contract. It does not represent that they would
thereafter have the lumber sawed, or that they had a contract for lumber at
the mill and were to have it at a certain time, but that they actually had it
there. It did not appear even that the lumber was sawed or was to be sawed at
that mill, or that it had any connection with the mill, except as the point at
which their then lumber was located. Lumber at the mill in gross, to be sawed
by the mill owners, and to be delivered to them, was not their lumber till
actually measured and set apart for them; and if Hill had had a contract to
deliver the lumber at the mill at a day named, it would still have remained
Hill's so long as it was mixed up with other lumber. That Durrell was to go
and get the lumber "as soon as it could be done," shows that the understanding
was that Durrell was to find the lumber there. Barnes v. Graham, 4 Cow., 452;
M'Donald v. Howell, 15 John., 351; Russell v; Nicoll, 3 Wend., 112, 118. There
is no proof whatever that there was even an offer to Durrell to furnish him
with the 110,000 feet of lumber belonging to Dickhut & Benson, whose lumber
alone he had contracted to raft. Proof that there was sufficient lumber in
quantity without proving it was the lumber of Dickhut & Bennison, was not
sufficient. Cobb v. Williams, 7 John., 24; Newton v. Galbreath, 5 John., 119;
Barnes v. Graham, 4 Cow., 452. By the contract the lumber was to be there
ready for him. Dickhut was bound to see that it was all there. Pull
performance in this respect was required of him. Rice v. Churchill, 2 Denio,
145; Hammond v. Gilmore, 14 Conn., 479, 485; Kimball v. Grover, 11 N. H. 376;
and, Durrell was not bound to accept any of the lumber till it was all ready.
He was not bound to accept of a part performance. Davenport v. Wheeler, 7
Cow., 231; Cobb v. Williams, 7 John., 24; Bruce v. Pearson, 5 John., 535;
Russell v. Nicoll, 3 Wend., 118; Wilcher v. Hale, 11 Eng. Com. Law, 224. If
Dickhut did not have the lumber there, but expected to have it there on
demand, or in a reasonable time on demand, so that Durrell would have to wait,
he should have so informed Durrell. But in requiring peremptory movements of
Durrell, he clearly did not expect any delay. If he represented the lumber as
then being there, and he had at the time known the fact, it would have excused
Durrell from any attempt to perform his contract. Harrington v. Wills. 12
Vermont, 505, 509; Boodell v. Parsons, 10 East, 359. Nor can Dickhut, having
set up a complete performance by his plea, show any excuse or waiver of
performance. Davenport v. Wheeler, 7 Cow., 231.

But, the questions sought to be raised in this case do not properly arise on
the paper in the case called a bill of exceptions. It was signed and filed
several days after the trial. It does not purport to be on exceptions taken at
the time of the occurrences, nor is the motion for a new trial, the overruling
of which is now assigned for error, even noticed or alluded to in the bill of
exceptions. Exceptions to evidence must be taken as soon as the court decides
to admit or reject it, though the exception may be reduced to form afterwards.
Pool v. Kleeger, 11 Pet., 185, 211; Ex parte Bradstreet, 4 Pet., 102. A party
cannot assign for error the admission of testimony to which he did not except.
Sawyer v. City of Alton, 3 Scam., 129; Smith v. Moore, 3 Scam., 464; Scott v.
Floyd, 9 Pet., 441. The giving or refusing instructions must he excepted to at
the time, and if not done, no exception can be taken to the decision of the
court in giving or refusing instructions, on a motion for a new trial. Hill v.
Ward, 2 Gilm., 293; Leigh v. Hodges, 3 Scam., 15; Gibbons v. Johnson, 3 Scam.,
63; Gilmore v. Ballard, 1 Scam. *252; Miere v. Brush, 3 Scam., 24; [*81] Ward
v. Ward, 3 Gilm., 285; Updike v. Armstrong, 3 Scam., 566; Randolph v. Asley, 8
Missouri, 656; Bompart v. Boyer, ibid, 234; Life and Fire Insurance Company v.
Mechanics' Insurance Company, 7 Wend., 34.

The exceptions should be express and direct to the point in question. They may
all be grouped in a single sentence; but they must be at least mentioned as
exceptions taken at the proper time, and applied by the bill to the points
raised for the examination of the court, on writ of error. This bill excepts
to "all the foregoing," but whether to the evidence or to the instructions no
one can tell. Wallace v. Warren, 17 Wend., 259; Frier v. Jackson, 8 John.,
495; Ludlam v. Broderick, 3 Green, 269, 275; Trueluck v. Peeples, 1 Kelly, 1;
Reab v. M'Alister, 8 Wend., 109. The correct practice is to prepare the bill
of exceptions on the trial, and file it of the term. Where this is
inconvenient, a note of the exception should be taken at the time, and leave
given by entries on the record, to reduce the note of exception to form
afterwards, when the bill should be filed nunc pro tuno. But at whatever time
the bill is reduced to form and signed, it should purport on its face to have
been taken and signed at the time of the occurrences mentioned in it;
otherwise, though copied into the record, it will be considered as no part of
the record, and will be wholly invalid and disregarded. Evans v. Fisher, 5
Gilm., 453; Leigh v. Hodges, 3 Scam., 17; Walton v. The United States, 5 Cond.
Rep., 721; Shepherd v. Wilson, 6 How. U. S., 260, 274-6; Law v. Merrils, 6
Wend., 268; Wilson v. Owens, 1 How. Miss., 126; Green v. Robinson, 3 How.
Miss., 105; The Governor v. Evans, 1 Pike, 349, 360, 361; Lenox v. Pike, 2
Pike, 12, 21-24; Shepherd v. White, 3 Cow., 32; Gibbons v. Johnson, 3 Scam.,
61; Ex parte Bradstreet, 4 Pet., 107; Hawkins v. Lowrey, 6 J. J. Marsh., 443.

Great stress is laid in numerous cases upon the fact that the statute requires
that the exception should be taken at the trial. Such is our statute. Where
this is required by statute we have been able to find no case in which it was
not held that a bill of exceptions must show on its face, in express terms,
that the exception was, in fact, taken at the proper time. See Revised Stat.
1833, page 491, sec. 19; do., 1845, page 416, sec. 21. Even in New York it is
a question of practice. The law does not specify the time when the exception
shall be taken, and the exception, when taken, must appear on the face of the
bill to have been taken at the time. Law v. Jackson, 8 Cow., 746; 9 Wend.,
241; Dean v. Endley, 10 Wend., 255; The People v. Dalton, 15 Wend., 581; 6
ibid, 268; Willard v. Warren, 17 Wend., 259; 8 Cow., 746; 3 Pick., 174. The
court can not reverse the judgment on the ground that the court below erred in
overruling the motion for a new trial. No exception was taken to the
overruling of the motion. Independent of the fact that the general exceptions
noted in the bill of exceptions were not taken in time, no exception was, at
any time, taken to the overruling of said motion. The bill of exceptions is
here copied into the record, and shows positively and conclusively that no
such objection ever was taken, either at the time or afterwards, in the court
below. The bill of exceptions does not even notice or allude to any such
motion, and it is only from an order on the record that we arrive at the
knowledge that such motion was made. The decision of the court in overruling
the motion for a new trial, can not be inquired into here, where it was not
excepted to in the court below, and at the time. Miller v. Dobson, 1 Gilm.,
574; Hill v. Ward, 2 Gilm., 285; Barnes v. Barber, 1 Gilm., 401, 407-8;
Vanderbilt v. Johnson, 3 Scam., 50; 1 U. S. Dig., page 412, sec. 37; Clemson
v. Kruper, Breese, 162; Gibbons v. Johnson, 3 Scam., 61.

On the examination of the above cases, and the original record on file
therein, the court will find that the bill of exceptions contained the
evidence and instructions, yet the court would not act on the evidence or
instructions, simply because the bill of exceptions was not taken and so shown
to be in apt time, a view sustained by all the decisions as irrefragable. Nor,
does the fact that the evidence and instructions are all set out in the bill
of exceptions, make any difference, unless the exceptions are properly taken
at the proper time, and so shown by the bill. The bill is to be disregarded
for all purposes, and the court can not in such cases look into the bill to
see whether the court erred in overruling the motion. That question has been
already decided in this court, and a similar question has been decided in New
York. It results as a necessary consequence of the principle so often decided,
that the bill is a nullity. The bill can not surely be a nullity, and be at
the same time good and available for all the purposes for which alone a bill
of exceptions is taken, to wit, to bring before the court, for the revision of
errors said to have taken place during the progress of the trial. Leigh v.
Hodges, 3 Scam., 15; Gibbons v. Johnson, 3 Scam., 63; Whiteside v. Jackson, 1
Wend., 418, 421; Clemson v. Kruper, Breese, 162.

As to the third plea: The defendant waived that plea by pleading over. If the
defendant demurs to the declaration and then pleads to the declaration, he
waives his demurrer. Snyder v. Gaither, 3 Scam., 92; 3 Ala., 347; Wilcox v.
Woods, 3 Scam., 52. And if the demurrer to the declaration has been overruled,
pleading to the declaration waives any error in such ruling. Vanderbilt v.
Johnson, 3 Scam., 48. And, in general, if on overruling a demurrer, the party
resorts to ulterior pleading to the same point, the demurrer is waived. Barr
v. Phillip, Breese, 19; Burditt v. Burditt, 2 A. K. Marsh., 143. So in a case
precisely like this, if after a demurrer to a plea is sustained, the defendant
asks leave to plead over, he thereby waives the ruling on the demurrer. Wann
v. McGoon, 2 Scam., 74. The ordinary judgment on sustaining a demurrer to a
plea, is final and not respondeat ouster. The defendant in this case will be
presumed either to have denied this judgment of respondeat ouster, that he
might plead over, or to have availed himself of the privilege of that
judgment, by filing pleas four and five. These pleas state in express terms
that they were filed by leave of the court. In either event he has the same
benefit as if he had literally amended his plea, and shows he was not willing
to risk his case on the demurrer. The principle of waiver clearly applies to
it; he did not stand by his demurrer. Bell v. Morehead, 3 A. K. Marsh., 158; 5
Gilm., 459.

Trumbull, J. We regret that the record in this case is so made up as to
prevent an examination of the merits of some of the errors assigned, otherwise
we should have no hesitation in reversing the judgment.

No exception was taken to the decision of the court overruling the motion for
a new trial, nor is any allusion made to that motion in the bill of
exceptions. The plaintiff in error can not now, therefore, object that his
motion for a new trial was disallowed, nor can he avail himself of any error
of the court in giving instructions, because the record does not show that the
instructions were excepted to at the time they were given.

It appears from the record that several days after the trial took place, and
at the time the motion for a new trial was overruled, the defendant below
filed his bill of exceptions, which, after giving the evidence in the cause,
sets forth the instructions that were given, and concludes as follows: "to all
of which said defendant excepts;" thus showing that the exception was then,
for the first time, taken. This court has repeatedly held that a party, to
avail himself of an exception to a decision of the circuit court, must take
the exception at the time the decision is made, and that the bill of
exceptions must affirmatively show that it was taken at that time. Gibbons v.
Johnson, 3 Scam., 63; Miere v. Brush, ibid, 23; Leigh v. Hodges, ibid, 17. We
are now called upon to change the rule which has been adopted, and to presume
that an exception was taken in proper time, when the judge has signed the bill
of exceptions, and it does not show upon its face at what time the exception
was taken, or rather, when, as in this case, it does show, that it was not
taken at the time the decision complained of was made. This we can not do. The
case of Gibbons v. Johnson, was precisely like this, and we decided at the
last term, of the court at Ottawa, in the case of Evans v. Fisher, 5 Gilm.,
453, that a bill of exceptions, in all cases, should appear on its face to
have been taken and signed at the trial; and if for any cause it is not then
done, it should be executed nunc pro tunc, so as to appear to have been taken
at the trial. But we are not disposed at this time to enter into a discussion
of the propriety of the rule adopted. It has been established by a number of
decisions of the court, and acted upon for several years as a settled rule of
practice. In such a case the rule ought not to be changed by the court, even
admitting that at the beginning it would have been better if a different
presumption had been indulged, and a different rule established. The fifth
instruction was clearly erroneous, but inasmuch as it was not excepted to when
given, the giving of it can not now be assigned for error.

It is also assigned for error that the court improperly sustained the demurrer
to the fourth plea. It appears from the record that when the demurrer was
sustained to that plea, an order was entered by the court that the defendant
answer over, and he did answer further, by subsequently filing other pleas.
According to the decision of this court, in the case of Wann v. M'Goon, 2
Scam., 74, the filing of the subsequent pleas might well be regarded as a
waiver by the defendant of his fourth plea; but whether this be so or not the
plea was clearly bad. It stated that part of the lumber, thirty thousand feet,
was offered to the plaintiff when demanded, and that the plaintiff was
informed and advised that all the balance of said lumber should be furnished
as fast as he could raft the same. Had issue been taken upon this plea, one
point of inquiry would have been, whether the plaintiff was informed and
advised as alleged in the plea a matter wholly immaterial in the case. The
plea, to have been good, after setting forth the offer to furnish part of the
lumber, should have averred that the defendant was ready to furnish the
balance as fast as the plaintiff could raft it.

The agreement is not to be understood as containing a covenant on the part of
Dickhut, that he had the whole one hundred and ten thousand feet of lumber on
the bank of the Wisconsin river, at the time of making the contract for
rafting the same, but a fair construction of the contract required that the
lumber should have been ready as fast as Durrell could raft it. Judgment
affirmed.

Judgment affirmed.

-------------------
Cited—Duffield v. Cross, 13 Ill., 699; Love v. Moynahan, 16 Ill., 277;
Armstrong v. Mock, 17 Ill., 166; Parsons v. Evans, 17 Ill., 238; Hance v.
Miller, 21 Ill., 636, Daniels v. Shields, 38 Ill., 197; M'Clurkin v. Ewing, 42
Ill., 573; Center v. Gibney, 71 Ill., 557; D. M. Force Manuf. Co. v. Horton,
74 Ill., 310; Ill. Cent. R. R. Co. v. Modglin, 85 Ill., 481.

(1) Unless the bill of exceptions shows on its face an exception to the
judgment, of the trial court, in overruling a motion for new trial, such
judgment can not be assigned for error, Pottle v. M'Worter, 13 Ill., 454;
M'Clurkin v. Ewing, 42 Ill., 283; Gill v. People, 42 Ill., 321; see Parsons v.
Evans, 17 Ill., 238; D. M. Force Manuf. Co. v. Horton, 74 Ill., 310; applying
the same rule to the final judgment on trial to the court jury waived. The
mere entry of a motion for new trial does not make the motion, or the reasons
thereof, part of the record; a bill of exceptions is necessary, Daniels v.
Shields, 38 Ill., 197; Gill v. People, 42 Ill., 321; and the court will not
consider such motion as part of the record even where there is an agreement of
parties as to the facts of the case; conceding such an agreement became part
of a record without being, itself, embodied in a bill of exceptions, Daniels
v. Shields, 38 Ill., 197; see Clemson v. Kruper, Breese, 162, note 2, as to
object and office of bill of exceptions; see Gallimore v. Dazey, 12 Ill., 143,
note, as to when bill of exceptions not necessary. (Ed., 1885)

(2) Bill of exceptions settled several days after trial and stating "the
plaintiff asked for the following instructions, to the giving of which the
defendant excepted," will not be considered on review; the inference is the
exceptions were not taken, on the trial, in apt time, Duffield v. Cross, 13
Ill., 699. As to time to take bill of exceptions, see Johnson v. 4ckless,
Breese, 59, note 1.

(3) To avail of a bill of exceptions it must affirmatively show the exceptions
were taken at the time the matter complained of occurred, Martin v. People, 13
Ill., 341; Burst v. Wayne, 13 Ill., 664; Parsons v. Evans, 17 Ill.. 238; Hance
v. Miller, 21 Ill., 639; Ritchey v. West, 23 Ill., 385; thus objections to the
giving or refusal of evidence, to be reviewed, must be made at the time of the
giving or refusal, People v. Gray, 72 Ill., 343; Galena etc. Co. v. Burkbeck,
70 Ill., 208; Wilhelm v. People, 72 Ill., 469; Littiech v. Mitchell, 73 Ill.,
603; Brannon v. Strauss, 75 Ill., 234; Welborn v. People, 76 Ill., 516; Martin
v. Culver, 87 Ill., 49; Merch. D. Trans. Co. v. Joesting, 89 Ill., 152;
Gillett v. Booth, 95 Ill., 183; Ellis v. Sisson, 96 Ill., 105; I. & St. L. R'y
Co. v. Ester, 96 Ill., 470; Chi. C. R'y Co. v. Mumford, 97 Ill., 560; Seavey
v. Carrigan, 4 Bradw., 324; Harris v. Pearce, 5 Bradw., 622; Flora v. Lee, 5
Bradw., 629; Bd. of Educ. v. Taft, 7 Bradw., 571; Bethalto v. Taft, 7 Bradw.,
571; so in relation to the giving or refusing of instructions, Harbaugh v.
Monmouth, 74 Ill., 367; Tol., P. & W. R'y Co. v. Parker, 73 Ill., 526; Ill. C.
R. R. Co. Modglin, 85 Ill., 481; Goss & P. Manuf. Co. v. People, 5 Bradw.,
510; Myers v. Walker, 31 Ill., 363.

(4) Repeated decisions of the same point by the same court; the doctrine stare
decisis should prevail, Stone v. Wood, 16 Ill., 177; Hopkins v. M'Cann, 19
Ill., 113. Expedit reipublicoe ut sit finis litium, Baker v. Palmer, 83 Ill.
568, and, the doctrine of stare decisis is not to be departed from for slight
or trivial cause, Frink v. Darst, 14 Ill., 304; but in respect of this
doctrine, general expressions are to be taken in connection with the facts of
the case and what is said arguendo and beyond the case, though entitled to
respect is not authoritative in other cases, Mayer v. Erhardt, 88 Ill., 452. A
case twice before the court and all questions decided the same way on both
trials; the court will refuse to consider the errors assigned. Counsel who
bring up such a case for further argument misconceive their professional duty,
Cook v. Norton, 61 Ill., 285; see Newberry v. Blatchford, 106 Ill., 584. Rule
applied, Johnson v. Joliet etc. R. R. Co., 23 Ill., 203, by the doctrine stare
decisis, special acts of incorporation will be valid, non obstante the
constitutional provision, of 1848, requiring general law for such purpose,
without any recital that the object could not be accomplished by general law,
See, also, L. S. & M. S. R'y Co. v. C. & W. Ind. R. R. Co., 96 Ill., 125; S.
C, 97 111., 506.

(5) See Beer v. Phillips, Breese (ed. 1885), 19, and note 1.

(6) Vendor's right of action not accrue until the property is delivered or
offered to be delivered, if the parties are mutually bound; in such case
vendee can not maintain suit unless he is ready and willing to receive,
Hungate v. Rankin, 20 Ill., 639; for when there is a promise to deliver at a
time and place certain, the article to be paid for when sold, the obligations,
to pay and deliver are concurrent and either party to recover, as for a
breach, must aver a readiness and ability to receive and to pay, or a delivery
or offer to deliver, Hough v. Rawson, 17 Ill., 588; Myers v. Walker, 31 Ill.,
363. Nevertheless vendor will be excused of delivery in case payment is to be
made on delivery, if vendee shall have informed him of his inability to pay,
Cummings v. Tilton, 44 Ill., 172; Colvin v. Weedman, 50 Ill., 311; this
although the time of payment be not specified, for, in such case it is
inferred payment is to be made at the time of delivery, Metz v. Albrecht, 52
Ill., 491. The rule is, that where the consideration of the defendant's
contract is executory, or his performance is to depend on some act to be done
by plaintiff, the plaintiff must aver the fulfilment of such condition or must
show excuse for non performance, People v. Glann, 70 Ill., 232; but, defendant
may dispense with such performance, as by refusing to go on with the contract,
Burnham v. Roberts, 70 Ill., 19; or by other modes, Wright v. Gardner, 66
Ill., 94; see Rawson 13. Clark, 70 Ill., 656; Clark v. Busse, 82 Ill., 515;
Snell v. Brown, 71 Ill., 134; West. Un. R'y Co. v. Smith, 75 Ill., 496. If the
property sold be held by vendor, awaiting payment, vendor, as prerequisite of
suit, must deliver or offer so to do, unless the property be destroyed without
fault of his, Barrow v. Window, 71 Ill., 214.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar.
CHICAGO: CALLAGHAN & CO. 1886.

 

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