#### Illinois Car and Equipment Co. v. Alonzo Weibel, Use of, etc.

1. Verdicts—Bemittitur in the Appellate Court When Excessive.— Where the evidence in the record shows the verdict to be excessive the excess may be remitted in the Appellate Court and the judgment affirmed for the balance.

*491Assumpsit. —Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1901.

Reversed and remanded, unless a remittitur is filed, as suggested, then to be affirmed for $67.20,

Opinion filed April 4, 1902.*

McCordio & Sheriff, attorneys for appellant.

Walter GL Kraft, attorney for appellee.

*

Remittitur filed April 4, and cause affirmed April 4,1902.

Mr. Justice Waterman

delivered the opinion of the court.

This was an action of assumpsit.

The bill of particulars filed by appellee for work actually done amounted to.... ..............$201 85

“ For profit that could have been made under contract plaintiff refused to permit the completion of................................... 23 30”

$22.5 15

The plaintiff admitted" having received a payment of $76.96. The defendant paid orders given by plaintiff to men employed by him. It produced lists of these with names of persons to whom payments were made and amount paid to each. Upon the trial these were shown to the plaintiff, and he was asked if they were correct; he replied:

“ A good many of them are, yes. Some of them ain’t. The men’s names is all correct.”

“ Q. I said the amounts. A. That one with the seven car builders on it, $12.25, that was not to be charged to me at all. Them seven men was sent to help me put hay racks, but I couldn’t get no stuff for them to work with.”

The lists of payments produced, as so made, amounted to $146.80; deducting the $12.25 objected to by plaintiff, leaves $134.65 paid by defendant; taking this from his claim for work done of $201.85, leaves $67.20 due plaintiff.

We see no reason for allowing to him unearned profits.

He acquiesced in the termination of the contract.

It appears probable that the defendant should have been *492allowed the $12.25 paid to seven men sent, as plaintiff says, to help him “ put hay racks; ” but the jury have not credited this su,m.

Taking his own testimony he is entitled to but $67.20, and if he shall within ten days remit to that sum judgment will be affirmed for that amount, otherwise the cause will be reversed and remanded.

Beversed and remanded unless remittitur to $67.20 be made; if made, affirmed for $67.20.